- On 11th Feb 2021, the government put an NHS Integration and Innovation White Paper before Parliament.
- The key – and very simple – takeaway from its 80 badly-written pages is there’s no need to legislate to achieve White Paper’s key stated aim – to stop and reverse the wasteful competitive tendering process that was set up by the 2012 Health and Social Care Act. The Public Contracts Regulations 2015 – which the White Paper proposes removing the NHS from – already provides the ability to choose to tender or not within the NHS.
- So what is the White Paper really for? Hidden in plain sight, its aim is to lock in changes to the NHS that were rushed through in a vain attempt to stop it being overwhelmed by hundreds of thousands of people who fell ill from Covid19, thanks to the government’s incompetent response to the pandemic. Changes that have been celebrated as a triumph. And relatedly, to lock in cost-cutting insurance-based ‘new care models’ that were funded and promoted in 50 Vanguard schemes by Samantha Jones before she jumped ship to run the UK subsidiary of the USA Centene Corporation (whose advance into the NHS she had promoted via her New Care Models programme. From the Centene subsidiary she has just flitted to 10 Downing Street to advise Boris Johnson on NHS Transformation and social care.) Covid-19 was used by the powers that be to accelerate changes introduced by the New Care Models programme.
- When you look behind the spin, it’s clear that this White Paper locks in the “public private partnership” and cost-cutting features of Accountable/Managed Care – such as the Alzira Accountable Care System model of Ribera Salud, the Spanish Centene Corporation subsidiary.
- In other words, the White Paper’s aim is anything but what the NHS was set up for – to provide universal access to the full range of healthcare, based on clinical need and free at the point of access.
Procurement, commissioning and contracting are now called provider selection
NHS commissioners are now to be called “decision-making bodies” and they are to “select” providers according to a “provider selection regime.”
Depending on whether the services they’re “selecting” are national, multi-Integrated Care System, single Integrated Care System, NHS hospital level or local authority level, the “selectors” (called decision-making bodies in the White Paper) are:
- (A reconstituted) NHS England,
- New statutory Integrated Care System NHS Boards
- NHS trusts and foundation trusts (for subcontracted services for their hospital area)
- Local authorities (‘when arranging certain healthcare services for the purposes of the health service’).
- New statutory joint committees of any of the above.
The public consultation on the ‘Provider Selection Regime’ ended 7 April 2021. The CK999 response is downloadable here
The Provider Selection Regime applies to clinical NHS services and some public health services
The Provider Selection Regime would
“only apply to the arrangement of healthcare services – including public health services whether commissioned solely by a local authority or jointly by the local authority and NHS as part of a S75 agreement. The procurement of non-clinical services, such as professional services or clinical consumables, will remain subject to Cabinet Office public procurement rules.”(White Paper, Annex A, 5.50)
This regime would not apply to:
- social care services
- any public health services not arranged by NHS bodies or local authorities (for example those arranged by the Secretary of State directly such as Test and Trace)
- other non-clinical services such as consultancy or catering
- procurement of goods or medicines
- community pharmaceutical services, as separate regulations already set out how community pharmaceutical services are to be arranged, negating the need for additional rules. (4.4, NHS Provider Selection Regime Consultation on proposals February 2021, NHSE/I)
What the Provider Selection Regime replaces
This new provider selection regime would:
“replace the powers [of section 75 of the Health and Social Care Act 2012 Act including the Procurement, Patient Choice and Competition Regulations 2013] we propose to repeal.”
The new Health and Care Bill would also remove the commissioning of health services by NHS and public health commissioners from the scope of the Public Contracts Regulations 2015. (White Paper, Annex A, 5.47)
(Comment: Why do they want or need to remove the NHS from Public Contracts Regulations 2015?)
Public Contracts Regulations 2015 provides regulation and the ability to choose to tender or not within the NHS- see Sanchez-Graells’ expert opinion to the Health & Social Care Committee 2019. He states that all that is required is Guidance by Government/NHS England.
There is no need at all to completely deregulate as this White Paper proposes- but then they would not be able to bring in their new ‘best-value’ criteria which seem designed to favour digitisation, long term ‘sustainability’- ie cuts, ‘new care models’ all of which US providers such as Centene excel at.
Everything they want for ‘integration’ can be achieved with the Public Contracts Regulations 2015 and it also contains specific protections for compliance with environmental, social, and labour law. So why do they want or need to remove the NHS from Public Contracts Regulations 2015?
Which ‘selectors’ apply the Provider Selection Regime?
The ‘selectors’ that apply the Provider Selection Regime regime will be:
- (a reconstituted) NHS England, (for national, specialist services)
- New Statutory Integrated Care System Boards, (for NHS services across the ICS “footprint”)
- NHS trusts and foundation trusts (for subcontracted services for their hospital area)
- local authorities ‘when arranging certain healthcare services for the purposes of the health service’.
The white Paper calls these Selectors “decision-making bodies”
Secretary of State’s enhanced powers of direction
The White Paper gives the Secretary of State new powers over these selectors, which determine how they can apply the “Provider Selection Regime”.
Sec of State’s new powers over the reconstituted NHS England
“This [NHSE/I statutory merger] will be complemented by enhanced powers of direction for the government over the newly merged body.” (White Paper 1.16) In other words, the Secretary of State will have powers of direction over the new NHS England. The Health and Care Bill will bestow “appropriate intervention powers with respect to NHS England…allowing the Secretary of State for Health and Social Care to formally direct NHS England… to align its work effectively with wider priorities for health and social care…there will be occasions when it is appropriate for ministers to take more oversight in relation to NHS England, and these proposed powers would structure such interventions and ensure Ministers are accountable for them.”(White Paper, Annex A, 5.63, 5.69)
One of these powers of direction will include “a power for the Secretary of State for Health and Social Care to require NHS England to discharge public health functions delegated by the Secretary of State alongside the existing section 7A provisions (which will be retained as they have application to a wider range of bodies and, in general, are an effective mechanism in most circumstances). In common with the proposed power of direction in respect of NHS England’s other functions, this includes scope to direct as to how those delegated [public health] functions are to be exercised.”(White Paper, Annex A 5.124/5)
The Secretary of State’s new powers of direction over NHS England, combined with the quango’s assumption of the powers of NHS Improvement and the Competition and Markets Authority are further entrenched with the removal of the power and duty of Councillors’ Joint Health and Overview Scrutiny Committees to refer significant changes to the local NHS and social care services to the Secretary of State. This is replaced by the power of the Scretary of State to stop significant reconfiguration plans (White Paper, 3.20) at any point in the reconfiguration process. The Independent Reconfiguration Panel is “expected” to be replaced by new arrangements. (White Paper, 5.83/4)
Sec of State’s new powers over all NHS organisations and local authorities
The Sec of State would have a new duty to promote collaboration across the healthcare, public health and social care system.
This would place a duty to collaborate on NHS organisations (both ICSs and providers) and local authorities, “requiring them to work together under one system umbrella.” It also enables the Secretary of State for Health and Social Care to issue guidance as to what delivery of this duty means in practice, “in recognition of the fact that collaboration may look very different across different kinds of services.” (WP 5.14-5.16)
The Secretary of State, along with NHSE and the Local Government Association, will issue guidance to support Statutory Integrated Care Systems in establishing statutory Integrated Care System Health and Care Partnerships. (White Paper 6.21)
Secretary of State’s new powers over NHS and adult social care data
Sharing patients’ confidential medical data “for the benefit of…the wider health and social care system”, based on “the successful data sharing in response to Covid-19”, will be the subject of “a more flexible legislative framework to improve data access and interoperability” in the forthcoming Data Strategy for Health and Care. (White Paper, 5.34)
(Comment: Apart from the fact that the NHS is now being taken to court by Open Democracy for this data sharing in response to Covid-19, there is also the problem that in relation to commissioning/contracting under the new Provider Selection Regime, this data sharing is all about the potential influence of Population Health Management algorithms on the contracts issued.)
The resulting “more flexible” data sharing primary legislation is likely to include:
- A duty on NHS Digital to have regard to the benefit to the health and social care system of sharing data that it holds when exercising its functions.
- Powers for the Secretary of State for Health and Social Care to require data from all registered adult social care providers about all services they provide, whether funded by local authorities or privately by individuals…; and require data from private providers of health care.
- A power for the Secretary of State for Health and Social Care to mandate standards for how data is collected and stored, so that data flows through the system in a usable way, and that when it is accessed/provided (for whatever purpose), it is in a standard form, both readable by, and consistently meaningful to the user/recipient.
(Comment: We strongly disagreed with proposals for more flexible data sharing primary legislation in the White Paper consultation in January 2021 – our response is here. )
The Secretary Of State’s new legal power to make direct emergency payments to all social care providers
(White Paper, 1.19, 3.25,) to enable “delivering support to the sector in exceptional circumstances like those we have seen in the last year.” (WP, 5.96)
The Secretary of State’s new power to create New Integrated Care Trusts
would “ensure alignment within an integrated system where that is helpful”. (White Paper, 3.15)
A reconstituted NHS England
NHS England is to be reconstituted by placing the current de facto merger of NHS England and NHS Improvement on a statutory footing. (White Paper 1.16)
As NHS Improvement currently consists of the NHS Trust Development Authority (NHS TDA) and Monitor, the new Health and Care Bill will “formally transfer their functions to NHS England and abolish Monitor and the NHS TDA.” (White Paper, Annex A, 5.63)
The New Health and Care Bill would remove:
- NHS Improvement’s specific competition functions and its general duty to prevent anti-competitive behaviour.
- The need for NHS England to refer contested licence conditions or National Tariff provisions to the CMA.
- The Competition and Markets Authority’s specific powers to review mergers involving Foundation Trusts (FT).
It would reassign these functions and duties to NHS England and “allow NHS England, as overseer of the system, to ensure that decisions can always be made in the best interests of patients.” (White Paper, Annex A, 5.42) Ha!
The new Health and Care Bill would give NHS England an explicit power to set a financial allocation or other financial objectives for the statutory Integrated Care Systems. (White Paper 5.12)
NHS England will have the ability to jointly commission its direct commissioning functions with more than one Integrated Care System Board (White Paper 5.29)
NHS England will have specific power to issue guidance on joint appointments of executive directors between NHS Bodies; NHS Bodies and local authorities; and NHS Bodies and Combined Authorities. NHS England will need to keep the guidance under review, and if substantial changes to it are considered, they will need to consult appropriate organisations before the revision is published. (White Paper 5.31/2/3)
As well as losing powers to the Secretary of State, the reconstituted NHS England will also shed responsibilities to the statutory Integrated Care Systems (White Paper, 3.19).
But NHS England will be expected “to work with ICS NHS bodies on different models for place-based arrangements” (which will not be subject to “any legislative provision”) and it will “approve all ICS constitutions in line with national statutory guidance.”
New Statutory Integrated Care System NHS Boards
The 42 Integrated Care Systems in England (formerly STPs) will become statutory bodies.
Exactly what this means is left deliberately vague, as this allows for “flexibility”. From what I can make out:
- The Statutory Integrated Care System will consist of a statutory Integrated Care System Health and Care Partnership AND a statutory ICS NHS body (White Paper 1.14)
- How the 2 bits of the Statutory Integrated Care System will work together seems to be left to each Integrated Care System to decide, subject to approval of their constitution by the reconstituted NHS England.
- The Statutory Integrated Care System Health and Care Partnership will be responsible for the strategic plan for the ICS health, public health and social care needs (White Paper 1.14) – except later, the White Paper (6.18) says that the statutory ICS NHS body will have that job, and (6.19) that the Health and Care Partnership plan “would not impose arrangements that are binding on either party” and all the ICS NHS Body and local authority would have to do is “have regard to this plan.” This is perhaps just as well, because membership of the Statutory Integrated Care System Health and Care Partnership can include private companies aka “voluntary and independent sector providers and social care providers” (White paper 6.20)
- The ICS Health and Care Partnership could also be used by NHS and Local Authority Partners as a forum for agreeing co-ordinated action and alignment of funding on key issues, and “this may be particularly useful in the early stages of ICS formation. We will, working with NHSE and the LGA, also issue guidance to support ICSs in establishing these bodies. This, along with the flexibilities at place level, will allow systems to decide how much or how little to do at these different levels and will also potentially allow them to vary these arrangements over time as the system matures and adapts.” (White Paper 6.21)
- The Statutory Integrated Care System NHS body will be “responsible for the day to day running of the Integrated Care System” and “take on the allocative functions of Clinical Commissioning Group” (White Paper 1.14) – ie dividing up the NHS budget between different bits of the NHS such as acute hospitals, community health services, mental health services etc, on the basis of NHS England’s targets. Later the White Paper adds that, “The ICS NHS Body will take on the commissioning functions of the CCGs and some of those of NHS England within its boundaries, as well as CCG’s responsibilities in relation to Oversight and Scrutiny Committees. It will not have the power to direct providers…” (White Paper 5.12).
- Except that para also says, “There will be a duty placed on the ICS NHS Body to meet the system financial objectives [set by NHS England] which require financial balance to be delivered. NHS providers within the ICS will retain their current organisational financial statutory duties…However, these arrangements will be supplemented by a new duty to compel providers to have regard to the system financial objectives so both providers and ICS NHS Bodies are mutually invested in achieving financial control at system level.”
- Further, “Each ICS NHS body will have a unitary board, and this will be directly accountable for NHS spend and performance within the system, with its Chief Executive becoming the Accounting Officer for the NHS money allocated to the NHS ICS Body. The board will, as a minimum, include a chair, the CEO, and representatives from NHS trusts, general practice, and local authorities, and others determined locally for example community health services (CHS) trusts and Mental Health Trusts, and non-executives. ICSs will also need to ensure they have appropriate clinical advice when making decisions. NHSE will publish further guidance on how Boards should be constituted, including how chairs and representatives should be appointed.” (White Paper 6.18
- As well as the already-mentioned responsibilities “for the day to day running of the ICS, and NHS planning and allocation decisions…. developing a plan to address the health needs of the system [and] setting out the strategic direction for the system”, the Statutory Integrated Care System NHS body will also have responsibility for “explaining the plans for both capital and revenue spending for the NHS bodies in the for the NHS bodies in the system.” (White Paper 6.18)
“Flexibilities” and no legislation for place-based integrated care
The White Paper repeatedly states that integrated care at local authority level will be flexible, locally determined and not subject to new legislation:
- Supporting place based integrated care systems – aka “place-based joint working between the NHS, local government, community health services, and other partners such as the voluntary and community sector” will be a “key responsibility” for statutory Integrated Care Systems, although there will be “flexibilities at place level”. (White Paper, 1.14)
- Often “place level commissioning within an integrated care system will align geographically to a local authority boundary, and the Better Care Fund (BCF) plan will provide a tool for agreeing priorities. This will be further supported by other measures including improvements in data sharing and enshrining a ‘triple aim’ for NHS organisations…” (White Paper, 1.14)
- “ICSs will also want to think about how they can align their allocation functions with place, for example through joint committees, though we are leaving this to local determination.” WP, 5.11
- The point is made yet again that Health and Care Bill “will not…be making any legislative provision about arrangements at place level- though we will be expecting NHSE to work with ICS NHS bodies on different models for place-based arrangements.” (White Paper 6.14)
- And again, “Place based arrangements between local authorities, the NHS and between providers of health and care services are at the core of integration and should be left to local organisations to arrange…Health and Wellbeing Boards will remain in place…We will support HWBs and ICSs, including with guidance, to work together closely…” (White Paper, 6.18)
- There is a vague proposal that “Integration will be enhanced through the position of social care in the ICS structure” as well as mention of “a new standalone legal basis for the Better Care Fund and allowing ‘Discharge to Assess’ models to followed.[sic]” (White Paper 1.19) (Can’t the DHSC afford to employ a proof reader?)
- Other changes to legislation that affects social care would include “amending the legal framework to enable person-centred approaches to hospital discharge” – god knows what that means; “an enhanced assurance framework examining the performance of local authorities, and a new power to collect data from social care providers.” (WP 5.96).
NHS trusts and foundation trusts (for subcontracted services for their hospital area)
‘Arranging of services’ by providers – ie subcontracting (WP 7.15- 7.18)
- There will be occasions where health services are arranged by a provider of services, eg a sub-contract with an NHS trust, foundation trust or independent sector provider.
- If an NHS provider is arranging for the provision of a service by another provider, then this [Provider Selection] regime must be followed when deciding the arrangement.
- If a non-NHS provider has been awarded a contract under this regime, and then sets out to sub-contract any elements of that service, the NHS body that awarded the initial contract must hold the non-NHS provider accountable via that contract for any sub-contracting it undertakes (as is the case at present).
- Where any provider sub-contracts, ongoing contract management of both the lead provider by the decision-making body and of the sub-contractors by the lead provider is important to ensure that the service in place is achieving the desired outcome.
- In the context of Any Qualified Provider lists – NHS England intends to require that when contracting with providers, in particular in a lead provider model, statutory ICS NHS Body Boards should require via the contract that providers themselves enable choice (eg of location/service/team).
Local authorities ‘when arranging certain healthcare services for the purposes of the health service’.
Sorry lost the will to live now. I think this is basically about the NHS services local authorities commission with Better Care Fund money, in order to support social care services. And public health services that local authorities are responsible for.
Statutory Integrated Care Systems, Joint Committees and Joint and Collaborative Commissioning
Then it all gets more complicated, with the new duty to Commission Collaboratively across different Integrated Care System footprints (White Paper, 5.27). This involves “align[ing] decisions and pool[ing] budgets between CCGs and NHS England, across CCGs, and between CCGs and local authorities (LAs).”
So that Statutory ICSs can “work in partnership with other local bodies,” the WP has proposals for “joint committees… as well as existing collaborative commissioning arrangements (such as s.75 of the NHS Act 2006).” (WP 5.10)
The new Health and Care Bill will contain provisions for the formation and governance of these joint committees of statutory Integrated Care Systems and NHS providers and the decisions that could be appropriately delegated to them – and separately, for NHS providers to form their own joint committees. Both types of joint committees could include representation from other bodies such as primary care networks, GP practices, community health providers, local authorities or the voluntary sector. (WP 5.25, 5.26)
Putting WP 5.25. 5.26 together with WP 5.11 (“ICSs will also want to think about how they can align their allocation functions with place, for example through joint committees, though we are leaving this to local determination” ) it looks as if statutory Joint Committees are the means for “place-based” integrated care systems to be set up and operate.
The Provider Selection Regime Consultation document Feb 2020 (7.21/2)adds that joint commissioning and lead commissioning happens, for example, where:
“Selectors (decision-making bodies) are arranging services jointly with other decision-making bodies (eg multi-ICS arrangements), or where one decision-making body is acting as a ‘lead body’ on behalf of other decision-making bodies”
“Under joint arrangements such as these, a decision-making body may rely on the work done by another decision-making body as a valid means of demonstrating that its own responsibilities under this regime have been met, so long as this is transparently agreed and documented in line with this regime.”
(Comment: this seems like what happened with the 13 CCGs responsible for deciding on the AT Medics Change of control request for the Centene GP takeover in 5 London ICSs)
The new Health and Care Bill would (WP 5.29):
- Enable “collaborative commissioning” by NHS England and more than one Integrated Care System Board, so that specialist services can be arranged for the combined population of different Integrated Care Systems
- Allow Integrated Care Systems to enter into collaborative arrangements for the exercise of functions that are delegated to them, enabling a “double-delegation”.
- Allow groups of Integrated Care Systems to use joint and lead commissioner arrangements to make decisions and pool funds across all their functions (and not just commissioning functions).
- Enable a greater range of delegation options for section 7A public health services (ie screening and immunisation programmes etc, including the ability for onward delegation of the function into collaborative arrangements, such as a section 75 partnership arrangement.
Triple Aim duty
There will be a new
“shared duty that requires NHS organisations that plan services across a system (ICSs) and nationally (NHS England), and NHS providers of care (NHS Trusts and FTs) to have regard to the ‘Triple Aim’ of better health and wellbeing for everyone, better quality of health services for all individuals, and sustainable use of NHS resources.” (White Paper 5.18).
The originator of the “Triple Aim” formula is an American think tank, the Institute for Healthcare Improvement, which just happens to partner with healthcare corporations.
The government has translated Institute for Healthcare Improvement’s third aim “reducing the per capital cost of health care” into the fudge “sustainable use of NHS resources”.
The Triple Aim was central to the New Care Models funded and developed from 2015 – first by Samantha Jones and then by her successor Louise Watson from June 2017. Like Samantha Jones, Louise Watston also then went through the revolving door to join Centene Corporation’s UK subsidiary, Operose Health, where she is now the Chief Integration Officer.
The aim of the New Care Models Programme was to test different models of “accountable care” imported from various countries. Samantha Jones funded Centene Corporation and its Spanish subsidiary Ribera Salud to work with the Principia Rushcliffe Vanguard in Nottinghamshire. This Vanguard was the model Nottingham and Nottinghamshire Sustainability and Transformation Partnership used to become the Greater Nottingham Accountable Care System. This slide shows the original formulation of the third of the Triple Aim as “affordability” in the face of increasing underfunding.
In August 2017 Centene Corporation was hired by Greater Nottingham Accountable Care System via a £2.7m contract brokered by the notoriously useless company, Capita. The subcontract was to pay Centene Corporation as “system integrator” to set up Greater Nottingham Accountable Care System along the same lines as Ribera Salud’s discredited Alzira model of public/private partnership.
In a Nottingham West Clinical Commissioning Group meeting in December 2017, Toby Douglas, Centene’s then-Senior Vice President for Medicaid Solutions, said the Accountable Care System, “would agree from looking at projections what they would expect from savings in the system overall, and pay the integrator accordingly”.
Given these “savings” should be in excess of £700m over 5 years, the system integrator could slurp up a lot of the NHS’s money. At that meeting – having left her NHS England job as New Care Models Director – Samantha Jones acted in an advisory role for Centene and recommended a 25-30% cut in secondary care activity to bolster savings.
Why does the White Paper say contradictory things about which of the two bits of the Statutory Integrated Care System is responsible for the strategic plan for the Integrated Care System health, public health and social care needs?
It seems that the statutory Integrated Care System Health and Care Partnership is in the White Paper as a sop to the Local Government Association, local authority leaders, and the voluntary community and social enterprise sector, who told NHS England’s ‘Integrating Care – the Next Steps’ engagement that they wanted BOTH options put forward by NHS England. (The first option was a mandatory statutory committee. The second model was to repurpose CCGs as the statutory local NHS Integrated Care System body, with revised governance arrangements – Legislating for Integrated Care Systems: five recommendations to Government and Parliament, Feb 2021, NHS England/Improvement)
They might as well not have bothered, because the statutory Integrated Care System Health and Care Partnership seems to have few or no powers.
As with the requirement for Local Authorities to stick to a “balanced budget”, the requirement for the Statutory Integrated Care System NHS Body to deliver system financial balance will bake in cuts. Particularly given the Triple Aim duty and the new duty to compel providers to have regard to the system financial objectives. This would make it impossible for hospitals to refuse to make cuts when ordered, if this would risk patient safety, as Calderdale and Huddersfield hospitals trust did around 2015.
The proposals about the Integrated Care System NHS Body’s financial powers and duties seem incoherent. How is it possible to reconcile the Integrated Care System NHS body being directly accountable for NHS spend and performance with it not having power to direct providers? And who has the new duty to compel providers to curb their spending so that the “system” financial control targets are met? If, as it seems, it is the Statutory Integrated Care System NHS Body, how can it simultaneously be true that it will not have the power to direct providers?
See CK999 response to the Provider Selection Regime consultation (above) for further comments on statutory Integrated Care Systems and place-based integrated care systems.
New commissioning (Provider Selection Regime) processes
So how will those “selectors” aka “decision-making bodies” select providers?
The Provider Selection Regime is “bespoke”. It will allow the selectors/ decision-making bodies “greater flexibility in how they arrange services than at present.”
It keeps the purchaser/provider split, but allows the selectors to decide if and when to use existing procurement processes, and to use other processes if they decide not to. (White Paper, 3.15)
The NHS Provider Selection Regime replaces current procurement rules with four possible courses of action, depending on the commissioning scenario (3.3, NHS Provider Selection Regime Consultation document February 2021). These scenarios are:
- Seeking continuation of existing arrangements using the existing provider.
- Selecting the most suitable provider when a service is new or changing substantially, but a competitive procurement is not appropriate
- Selecting a provider by running a competitive procurement.
- “Simplified” pre-selected Any Qualified Provider lists, created without procurement, for GP referrals to elective care.
The processes the Provider Selectors will have to follow in each of these scenarios are laid out in paras 5.5 – 5.12, 7.7-7.9, NHS Provider Selection Regime Consultation document February 2021.
The deal for seeking continuation of existing arrangements using the existing provider looks like the current situation for commissioning NHS services without competitive processes – with the addition (I think) of the case where the incumbent provider/group of providers is judged to be doing a sufficiently good job (ie delivering against the key criteria in this regime) and the service is not changing, so there is no overall value in seeking another provider.
In this case the selectors (aka “the decision-making body”) must “publish their intention to award the contract, with a suitable notice period (eg 4-6 weeks unless a shorter period is required due to the urgency of the case); and if during the notice period credible representations are received from other providers, the decision-making body must deal with them as set out in Section 7: Further considerations.” (5.6 NHS Provider Selection Regime Consultation document February 2021)
- The only possible beneficiaries of the deal for seeking continuation of existing arrangements using the existing provider are private or 3rd sector companies. NHS organisations like hospital trusts, community health trusts and GP practices (apart from those on Alternative Provider Of Medical Services contracts) already operate on open ended contracts which do not require extensions.
- 4-6 weeks or less is not very long for other providers to find out about the contract opportunity and make credible representations.
- The same goes for local authority oversight and scrutiny committees, which “already have powers to scrutinise the activities of certain NHS bodies, as do health and wellbeing boards. These powers will remain and will provide an additional means of scrutiny and another means of oversight of decision-making body decision- making.” (WP 8.9) If they haven’t got time to scrutinise the “selection” of providers, their “powers” are undermined.)
If the “decision-making body” decides to select the most suitable provider when a service is new or changing substantially, by awarding a contract directly without competitive procurement, it has to show “reasonable grounds to believe that one provider/group of providers is the most suitable provider (which may or may not be the incumbent)”. This requires them to:
- set out clearly that they are using this approach to select a provider
- be satisfied that they can justify that the provider they are proposing to select is the most suitable provider by reference to the criteria set out in the [Provider Selection] regime and any other relevant factors, and according to any hierarchy of importance the decision-making body decides is necessary
- have carefully considered other potential options/providers within the relevant geographical footprint (ie a local service is a local footprint, a regional specialised service is a regional footprint, etc) in reaching this decision and be able to evidence this
- publish their intention to award the contract, with a suitable notice period (eg 4-6 weeks unless a shorter period is required due to the urgency of the case)
- if during the notice period credible representations are received from other providers, the decision-making body must deal with them as set out in out in Section 7: Further considerations. (5.8 NHS Provider Selection Regime Consultation document February 2021)
Same issues with the short time period.
Comments on the Provider Selection Regime key criteria are in the ck999 response to the Provider Selection Regime consultation.
The deal with selecting a provider using competitive procurement seems to be designed to allow voluntary and independent sector providers to continue to bid for contracts to provide a range of NHS services (5.9 NHS Provider Selection Regime Consultation document February 2021)
The “ongoing role” in the NHS for voluntary and community sector companies and private companies would be enabled both through competitive tendering AND Any Qualified Provider contracts:
“An ongoing role for the voluntary and independent sectors in complementing NHS provision would continue; through national and regional procurement exercises as are currently underway to boost NHS capacity to provide elective services; and through simplified AQP arrangements.” (7.4 NHS Provider Selection Regime Consultation document February 2021)
The Provider Selection Regime proposal for “simplified” Any Qualified Provider lists for GP referrals to elective care
This proposes that the statutory Integrated Care System NHS body Boards will be able to pre-select companies to put on the Any Qualified Providers list, without any procurement process. All the selectors will have to do is “demonstrate the providers meet the stated service conditions”. (7.7-7.9 NHS Provider Selection Regime Consultation document February 2021)
- How will they do that?
- And is this the means by which Ian Holmes ICS Director wants to commission voluntary and community sector companies without the “burden” of competitive tendering? He told the 23.2.21 wHY JHSOC that he welcomed the White Paper because it offered a way to lay down the “burden” of competitive tendering for VCS services.
- And what about patients’ right to choose services run by NHS organisations not private/3rd sector providers? Years ago I asked my GP to put on my medical record that I only wanted treatment from NHS organisations. She said there was no code on the computer for that.)
There will be two Any Qualified Provider lists for the pre-selected companies:
- the current Any Qualified Provider list that commissioners have to provide by law, to guarantee patients their ‘legal right to choice of first outpatient appointment’
- an additional (optional) Any Qualified Provider List for non-consultant-led services
Once a company is on the Any Qualified Provider list/s, the selector/decision-making body must offer them the Statutory NHS Standard Contract . (The company can then register its services on the Electronic Referral System (ERS) lists from which patients “make their choice”.)
Decision-making bodies have no discretion to remove a provider from the ERS lists, or end/withdraw its NHS Standard contract unless the provider ceases to meet the required service conditions or is demonstrably failing to deliver the safety/quality/service standards.
For ‘legal right to choose’ provider lists, the decision-making body cannot restrict the number of providers on the list, so long as they meet the stated qualification criteria.
- So does that mean for the optional AQP list, the selector/decision-making body CAN restrict the number of providers?
- And would a Statutory ICS be allowed to decide NOT to set up the additional (optional) Any Qualified Provider List for non-consultant-led services. In other words, is it really an option?
Patients have to be “demonstrably” damaged or failed before the ICS can take a company off the Electronic Referral System list)
NHS England intends to require that when contracting with providers, in particular in a lead provider model, statutory ICS NHS Body Boards should require via the contract that providers themselves enable choice (eg of location/service/team).
Key criteria Selectors/ Decision-Making Bodies will need to apply
Section 6 of the NHS Provider Selection Regime Consultation document February 2021 specifies the key criteria Selectors/ Decision-Making Bodies will need to apply when:
- Seeking continuation of existing arrangements using the existing provider.
- Selecting the most suitable provider when a service is new or changing substantially, but a competitive procurement is not appropriate
- Selecting a provider by running a competitive procurement. these processes are in
Basically, these criteria (without any hierarchy of importance, 6.4) are:
- Quality (safety, effectiveness and experience) and innovation (Why have they bundled innovation in with quality? They say it’s to “Ensur[e] decision-making bodies seek to innovate and improve services delivered by either existing or new providers, proactively developing services that are fit for the future.” Comment: But not all innovations improve services, especially given that the selectors have to comply with the “triple aim” and one of those aims is about cutting costs. This is likely to be at odds with improving services and making them fit for the future.)
- Integration and collaboration
- Access, inequalities and choice 2 ensuring that patient choice is promoted and protected,
- Service sustainability and social value
For more comments on the key criteria, please see ck999 response to the Provider Selection Regime consultation.