Graham Kent

1
Graham Kent

• Barrister
• Senior Principal Legal Officer
• NHS Primary Care and Professional Regulation
• DH Legal Services

2
Health Act 2006 3 Key Aims

• Removing restrictions on contracting for NHS
  funded sight tests
• Creating a more coherent commissioning framework
  for eye care services over and above the sight
  test
• Strengthening controls on redemption of optical
  vouchers

3
Why are these changes needed?

• Current system restricts who PCTs may contract
  with to optometrists, OMPs and registered
  corporate bodies
• These restrictions no longer reflect the reality
  of service provision
• DH wants to give PCTs the ability to contract
  directly with businesses who are providing
  services BUT
• Qualified clinicians must undertake the clinical
  work

4
Provider / Performer Model

• But with important differences from GMS and GDS
• 3 levels in GOS model
• Mandatory
• Additional
• Enhanced

5
Advantages

• PCTs will be able to contract with a wider range
  of providers
• PCTs will be able to commission enhanced services
  over and above the sight test from these or other
  providers
• More coherent and flexible framework
• Like that used for other primary care services

6
Controls over Redemption of Optical Vouchers

• Allows PCTs to issues notices that no further
  payments will be made to a supplier who may have
  been fraudulent
• Not a list of suppliers who may redeem vouchers
• Instead a blacklist of people who may not

7
Building on Success

• Ministers view is that NHS sight testing service
  delivers successfully for patients
• Wanted to reduce restrictions and improve
  commissioning framework
• Did not want to fundamentally change the current
  sight testing system

8
The Structure of the Changes

• 3 sets of Regs laid 1 May 2008 and coming into
  force 1 August 2008
• The General Ophthalmic Services Contracts
  Regulations 2008
• The Primary Ophthalmic Services Regulations 2008
• The Performers List (Amendments) Regulations 2008
• 1 set of Regs laid 1 May 2008 and coming into
  force shortly
• The Primary Ophthalmic Services Transitional
  Provisions Regulations 2008

9
Guidance and Models

• On PCC website
• All 4 sets of Regulations
• DH guidance on all 4 sets of Regulations
• Model contracts for mandatory services and for
  additional services
• Model patient display notices and (for mobile
  contractors) model patient information leaflets
• Model application forms contractors and
  performers
• Model transitional documentation for contractors
  and performers
• Various associated documents

10
What does not change?

• Who is entitled to an NHS sight test
• Patients being able to choose their GOS
  contractor
• Contractors being able to have a GOS contract
• Must meet national criteria
• Must satisfy local decision making on service
  quality, eg. inspection of equipment and premises
• Centrally negotiated sight test fee
• Sight tests remain a demand led not a locally
  commissioned service
• Who may conduct a sight test

11
The Big Things that are Changing

• Ophthalmic Lists and Supplementary Lists replaced
  by contracts and performers lists
• Present term contract is a misnomer it is in
  fact a statutory arrangement
• GOS is provided pursuant to regulations not under
  contract
• From 1 August 2008 the provider will have to have
  an actual contract document signed by both parties

12
The Model Contracts

• Lengthy documents
• Contain all provisions required by the Contracts
  Regs
• Contain various other provisions strongly
  recommended to make the contract work
• Ignore them at your peril!
• Optical bodies also recommending their members to
  use the models

13
Dispute Resolution Procedures

• Model contracts contain these
• Contractors can opt to be a health service body
  in which case the NHS internal disputes procedure
  will ultimately determine the outcome
• Otherwise disputes can end up before the county
  court if not resolved locally
• The Service Committees and Tribunal Regulations
  regime will no longer exist for GOS

14
Contractual Obligations

• Contracts contain obligations on both parties
• Contracts can be ended for breach of these
  obligations
• Removal for unsuitability, inefficiency and fraud
  will not be applicable any more
• There are other procedures such as breach notices
  and financial sanctions
• Late payment notices can be issued by the
  contractor to late paying PCTs/agencies

15
Applications for a Contract

• Similar to present application for inclusion in
  the Ophthalmic List BUT
• Literally anybody may apply for a contract
• Not everyone will get one
• All current mandatory and discretionary
  exclusions apply
• Requirement of suitability (for award but not for
  termination of contract)
• No chance for PCT to limit the number of persons
  who may have a contract

16
Its a contract, Jim, but not as we know it
17
Differences from primary medical and dental
contracts

• GOS contracts do not guarantee any NHS work
• No predetermined annual contract value
• NHS remuneration will depend on the number of
  patients who request an NHS sight test
• PCTs will not be able to rely on the fact that
  contractors are regulated by professional bodies
  they shouldnt have done this anyway

18
3 possible types of contractor

• Individual
• Partnership
• Partners will no longer be listed separately
• Single contract with partnership as a whole
• PCTs must check all partners individually
• Look out for LLPs uncommon in GOS at present
• Corporate body
• May be registered or unregistered
• PCTs must check all directors, chief executive
  and company secretary individually

19
Rejected Applications

• Statutory mechanism
• PCTs must give a reason
• Right of appeal to FHSAA
• New contract disqualification mechanism
• Similar to national disqualification for
  performers
• PCTs would normally apply to FHSAA for a contract
  disqualification
• But FHSAA can consider of its own motion if it
  rejects a contract appeal

20
Performers Lists

• Performers list resembles current supplementary
  list
• Performer may be included in only one performers
  list
• May then perform anywhere in England (but not
  Wales, Scotland, Northern Ireland)
• Possible for an individual to be both contractor
  and performer
• If so, he must be on the performers list in one
  area and have a contract in each area
• A contractor/performer with contracts in multiple
  PCTs may choose which performers list to be on

21
No Contract Numbers

• Contractor must have a separate contract with
  each PCT
• Separate contracts not required/allowed for more
  than one set of premises in a PCTs patch
• No legally required list of contractors
• Hence no legally required contract number
• PCTs may still need to allocate their own account
  numbers on a one per premises basis, eg. for
  Exeter or local payment purposes

22
Transitional Arrangements

• Automatic process for existing persons on the
  ophthalmic list
• The PCT must offer them a model contract
• The PCT must fill in the blank spaces in
  accordance with the current ophthalmic list entry
• They need to notify the PCT in writing by 1 July
  2008
• If they dont, this doesnt mean they wont get a
  contract, just that it wont be automatic or
  definitely by 1 August 2008

23
Exceptions to automatic transfer

• Front men in grandparenting arrangements
• Anyone included in the ophthalmic list in error
• Dispensing opticians
• Costco
• Questionable contractors
• Suspended from the list
• Contingently removed
• Subject to inquiry or investigation as to
  suitability or fraud

24
Further Information Required

• PCTs may not have full details required by the
  Contracts Regulations
• Private addresses
• Details and suitability of
• Directors
• Chief Executive
• Company Secretary
• of registered corporate bodies
• Where this information is not held it must be
  supplied before a contract can be finalised

25
Performers Lists Transitional Arrangements

• Main transitional provisions are in the Schedule
  to the Performers List (Amendment) Regulations
• Duty to prepare in advance of 1 August 2008 is in
  the Transitional Provisions Regs
• Automatic transfer procedure
• Questionable performers
• Suspended from the supplementary list
• Contingently removed
• Subject to inquiry or investigation as to
  suitability or fraud
• will be carried over on to the performers list

26
Contractor/Performers

• PCTs will need to write to ask individual and
  partnership contractors whether they are included
  in any other ophthalmic list
• If so, on which performers list would they prefer
  to be listed?
• Performers choice but must be listed with a
  PCT with which they hold a contract

27
Unresolved Old Regs Applications

• Unresolved and pending at 31 July 2008
• If performer is supplementary listed elsewhere
  (and will thus be performers listed elsewhere)
  then application will be void
• Otherwise should be treated as an application for
  inclusion in the performers list
• Unresolved corporate optician applications to be
  treated as void
• Any new (ie. post 1 August) application would
  then be caught by the need for CRB checks

28
The Devil is in the Detail

• Graham Kent
• DH Legal Services

29
Mandatory services and additional services

• Mandatory high street services
• Additional mobile or domiciliary services
• Mobile services no longer just a subset of GOS
• Compulsory for PCTs to have contracts to provide
  (some) mobile services
• Separate written contracts needed for mandatory
  and additional services
• Any contractor may provide one but not the other
• Suitability to provide additional services may be
  different
• Treating a vulnerable population hence a greater
  degree of risk

30
The Contracts

• Modelled on GMS and GDS contracts
• Many provisions are similar and relevant but also
  many are different and irrelevant
• GOS contracts considerably shorter than those for
  GMS and GDS
• If you have responsibility for GOS contracts
  youll find it useful to liaise with GMS and GDS
  contract colleagues, ie. across PCT/support
  agencies boundaries if need be

31
Complaints

• Complaints procedure is laid down in Contracts
  Regulations and set out in the model contracts
• Same procedure as in the current regulations
• One small difference Sch 1 para 27 of the
  Contracts Regs gives PCT power to require the
  contractor to advise the number of complaints
  received
• No prescribed intervals for this
• PCT will need to agree what intervals with each
  contractor
• Unlike GMS and GDS where PCT can determine those
  intervals unilaterally

32
LINks

• Local Involvement Networks
• Patient Forums abolished
• Contracts Regulations make provision for
  inspection by LINks
• Existing GOS Regulations will be amended before 1
  August 2008 and the new regulations will just
  carry this forward

33
Information Leaflet

• Mobile providers only
• Required content set out in Schedule 4 to the
  Contracts Regulations
• Model leaflet on the website

34
Duty to Patients

• Contractors must put the interests of the patient
  before their own financial interests Reg 16(4)
• Contractors must not mislead patients about the
  availability, quality and extent of the services
  available under the contract in order
  to get private work Sch 1 para 2

35
Mobile services inducements and advice

• Mobile contractors must not offer improper
  inducements, particularly not to proprietors,
  managers and staff of residential homes or day
  centres Sch 2 para 7
• Mobile contractors must not seek to mislead
  anyone about the quality and extent of the
  services available under the mobile contract
• Includes any misleading advertising
• Discounts or special offers generally available
  to patients are exempt

36
Anti-discrimination

• Contractors may not refuse to provide GOS on
  grounds of race, gender, social class, age,
  religion, sexual orientation, appearance,
  disability or medical or ophthalmic condition or
  on patients decision to accept or refuse private
  services Sch 1 para 1(5)
• Contractors must keep written records if they
  refuse to provide GOS unless the patient is
  ineligible Sch 1 para 1(6)

37
Standards of Conduct

• Contractors to keep a register of gifts worth
  over 100 Sch 1 para 52
• Contractors to hold clinical negligence and
  public liability insurance Sch 1 para 51

38
Change in notifications by mobile providers

• Evidence that mobile contractors had been putting
  in notification of intended visits months ahead
• Obviously an abuse as services can only be
  provided following a request by or on behalf of
  the patient
• New 8 week maximum period of notice as well as
  existing 3 week minimum for 3 or more patients at
  a sitting
• New 8 week maximum period of notice as well as
  existing 48 hour minimum for 1 or 2 patients

39
General duty to comply with the law

• Para 53 of the Contracts regulations imposes a
  general duty to comply with relevant legislation
  and guidance
• Includes any legislation under the NHS Act
• Also includes the Opticians Act
• For OMPs also includes the Medical Act