F requently asked questions and advice for area teams november 2013

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requently asked questions and advice for area teams





Dental – transfer of PDS+ to GDS

Can a PDS+ agreement transfer to a GDS contract?

The NHS England PDS to GDS policy states: PDS+ agreements are regulated by the PDS regulations and have the same right of transfer to a GDS contract.

PDS+ agreements allow for an element of the contract value to be paid on access and key performance indicators (KPIs) but a minimum of 51% of the contract value has to be based on units of dental activity (UDA) activity.
Schedule 3 Part 2, paragraph 2.5 of the PDS regulations states: In the event that the contractor exercises his/her right to a GDS contract, the contract value that will be negotiated as the national annual contract value (NACV) will be based on the payments that are made under the statement of financial entitlements (SFE). For the avoidance of doubt the payment made under the SFE is the services payment.
The minimum service activity of a PDS+ agreement is 51% although depending on individual PDS+ agreements this could be higher. The minimum amount that should therefore be negotiated is the contract value for the service activity.
On receiving a request to transfer from a PDS+ agreement to a GDS contract the area team should undertake a review of the local needs and service provision and where appropriate can negotiate an appropriate GDS contract value.

Dental – units of dental activity (UDA) volumes

Does a dental contract have to deliver the same number of UDAs each month?

No, the contract is for an annual contract value and the activity total has to be achieved within the financial year it is contracted for, however, there is a contractual requirement for the area team to carry out a mid-year review by 31 October based on the contracts delivery between the 1 April and 30 September.

Where contracts have delivered less than 30% of their contractual activity at this point it provides an opportunity for the area team to discuss this with the contractor and take further steps as set out in the contract to mitigate the risks of under delivery at year end. The mid-year, year-end NHS England policy provides further information and the processes required.

Dental – incorporation

Does a body corporate have to have a numerical majority dental care professionals as directors

A dental practice that wishes to incorporate may do so as long as it meets the relevant requirements, that is that at least half of the directors of a dental body corporate are dentists or dental care professionals (DCPs) registered with the GDC and that none of those directors is erased or suspended from a regulatory body’s register.

Section 43 of the Dentist Act 2005 states:
a body corporate commits an offence if it carries on the business of dentistry at a time when a majority of its directors are not persons who are either registered dentists or registered dental care professionals.”
This means that if a body corporate has less than half of the directors as dental care professionals they would be committing an offence under the Dentist Act 2005 and would not be a permitted body to hold a dental contract. A body with an equal number of non DCPs and registered DCPs would be allowed.
For example an application for incorporation where the sole directors are a husband and wife, with only one of them being registered with the GDC would be an appropriate dental body corporate.
However, a request where the directors consisted of three friends where only one was registered with the GDC would not meet the requirements of the Dentists Act.
It should be noted that a request to incorporate is not a minor change to the contract and does not mean the area team needs to agree to give the GDS or PDS contract to the newly incorporated company. Please refer to the NHS England Incorporation policy for further details.

Dental – PDS+ agreements

How much of a PDS+ plus agreement relates to service charge payment?

A PDS+ agreement allows for the area team and contractor to hold an agreement that remunerates the contractor not just for the delivery of activity (either general, orthodontic or both) but also for improving access within the practice (an access payment for unique patients seen) and delivery of quality services (payment for delivery against key performance indicators (KPIs). Schedule 3 (payments mechanisms) sets out the possible breakdown between these three elements of a PDS+ agreement.

The service element (activity) of the agreement has to be equal to or more than 51% of the agreement value. The remainder is then split between the access payment (unique patients seen) and a performance payment (based on agreed KPIs).
The template agreement is available via the PCC website at www.pcc-cic.org.uk/article/pds-plus-template-agreement

Eye care – optical body corporate registering with general ophthalmic council (GOC) and protected titles

Is an optical body corporate required to register with the GOC in order to practice?

Since 2008 corporate bodies are no longer required to register with the GOC in order to provide services, unless they are using a protected title. The following titles are protected under the Opticians Act 1989:

  • ophthalmic optician

  • optician

  • registered optician

  • dispensing optician

  • optometrist

  • registered optometrist

If a body corporate is using a protected title inappropriately it is contrary to Section 28 of the Opticians Act 1989.

Eye care – dispensing opticians processing GOS3 and GOS claim forms

A dispensing optician wishes to process GOS3 forms and needs to be added to our system for payment. What checks should be carried out before adding them to the system?

The supply and repair of optical appliances is always a private transaction even if an NHS optical voucher is used in full or part payment. Suppliers of optical appliances do not have to be professionally qualified unless they dispense to children (under 16) or to blind or partially sighted patients. The area team will need to check that the dispensing optician is entitled to dispense to these specific groups of patients before processing GOS3 and GOS4 claim forms.

If the dispensing optician is fully registered as a dispensing optician, they can dispense glasses to patients of all ages and to adults who are registered as blind and partially sighted and they can therefore submit GOS3 and GOS4 claim forms for all types of patients. An area team would need to advise their payments agency accordingly; unless this function is undertaken internally then the area team would just need to add them onto the system so that the GOS3 and GOS4 claim forms can be processed.

Eye Care – Christmas and New Year Opening

Are ophthalmic contractors required to open during Christmas and new year?

General Ophthalmic Services (GOS) is a routine service usually by appointment for the provision of an NHS sight test, GOS contractors do not hold a patient capitation list and are not required to provide out of hours emergency care when closed, therefore if the practice is closed for 24/48 hours it would not be detrimental to patient care.

Eye Care – different types of partnership and the associated paperwork to use

Please can you advise what the different types of partnerships are, what application forms should be completed and the contract type we would need to issue?

General partnerships

This is a partnership where two or more persons are carrying out a business purpose. General partners share equal rights and responsibilities and assume full responsibility for all business debts and obligations. The benefit of a partnership is primarily in taxation. General partnerships are governed by the Partnership Act 1890.

Forms to be used:

  • GOS Application – partnership application Section A and B

  • GOS Contract – partnership contract

Limited partnership

This is a partnership where the limited partners are able to restrict their personal liability to their stake in the business, ie their investment. A limited partnership must have at least one general partner taking on the full responsibility for the business debts and obligations. The general partners retain the right to control the business whilst the limited partners do not participate in management decisions. A limited partnership must register with companies house, their business name would end in LP, and they are governed by the Limited Partnership Act 1907.

Forms to be used:

  • Application – partnership application Section A and B

  • Contract – partnership contract

Limited liability partnership

A limited partnership offers similar tax advantages of a general partnership but offers personal liability protection to its participants. Individual partners are not liable for the wrongful acts of other partners, nor for the debts or obligations of the business. These are governed by the Limited Liability Partnership Act 2008.

Forms to be used:

  • Application – body corporate application Section A and B

  • Contract – body corporate contract

GOS application implications

When a partnership applies for a GOS contract an area team needs to understand which of the above partnership arrangements the business holds so the area team can send out the appropriate application forms and therefore issue the right contract. The partnership contract asks to stipulate which partner is general or limited so you understand who has full responsibility for the business.

This stipulation is currently missing from the application form but will be included in revised documentation. However, it does not stop you asking this question of the partnership.

Pharmaceutical services – change of ownership

The notice of commencement form from a recently approved change of ownership application, also informed of changes to the superintendent pharmacist and a director.

Which should be completed first, the fitness to practice checks on the new personnel or inclusion of the applicant in the relevant pharmaceutical list?

An area team should process the notice of commencement as there is nothing in the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 which would invalidate it (the notice of commencement) due to a change in superintendent or a director.

At the same time, an area team should process the fitness to practice information on the new personnel and satisfy themselves that the body corporate remains suitable to be included in the relevant pharmaceutical list.
If the checks on the fitness information of the new superintendent or director lead to concerns about the body corporate’s suitability to remain included in the relevant pharmaceutical list, the area team are advised to refer to NHS England’s ‘Policy for the identification, management and support of primary care practitioners whose performance gives cause for concern’.

Pharmaceutical services – notice of commencements

An application has been approved for a new pharmacy and the grant expires shortly. The area team has been advised that the local planning department has placed restrictions on the premises so that the applicant will not be able to sell over the counter medicines. The applicant has now submitted their notice of commencement.

Can the area team refuse to process it?

There is no provision within the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 to refuse to accept the notice of commencement on the basis that the applicant will not be able to sell over the counter medicines. Therefore if an area team receives a valid notice of commencement it would be required to include the contractor and premises in the relevant pharmaceutical list.

The terms of service set out in schedule 4 of the 2013 regulations do not require pharmacy contractors to sell over the counter medicines.
However the support for self-care essential service does require contractors to provide advice to patients with regard to managing their medical condition, including, as appropriate, advice on treatment options, including advice on the selection and use of appropriate drugs which are not prescription only medicines (paragraph 22(1), Schedule 4 of the 2013 regulations). The area team may therefore wish to discuss with the contractor what procedure they have put in place to ensure compliance with that particular essential service. This may, for example, involve the provision of the essential service with the patient then signposted to another pharmacy that is able to sell the recommended over the counter medicine.

Pharmaceutical services – notice of commencements

Does a successful applicant have to include the General Pharmaceutical Council’s (GPhC) premises registration number in their notice of commencement?

Yes, successful applicants have to submit a notice of commencement ‘in the correct form’. Paragraph 34(3), schedule 2 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 states that such a notice is in the correct form if it includes the information required under paragraph 29, schedule 2, and is in the same format as the version that NHS England sent to them with their decision letter. Paragraph 29(e), schedule 2 states that the GPhC premises registration number must be included in the notice of commencement.

Medical – locum payments to GP practices

Is there any guidance or is there to be any guidance issued regarding locum payments to GP practices to cover sickness in line with the statement of financial entitlement (SFE)?

Historically this has been one particular area where PCTs took different approaches depending on their own positions.

The SFE states that payment is a must; the amount to be paid remained discretionary.
PCC is working with NHS England to develop a discretionary payments policy which will cover locum payments along with the other seven areas where discretion is allowed under the SFE.
The policy is still under development at this stage as it has been necessary to get a better understanding of the position prior to 1 April 2013 and then consider fully how variances might be managed in future to ensure consistency of approach and local flexibility where appropriate.

Medical – 24 hour retirement over a weekend

Can a GP take 24 hour retirement over a weekend?

GPs can take 24 hour retirement over the weekend and this practice is widely used as it limits the impact on patients.

To qualify for NHS pension benefits a ‘type 1 medical practitioner’ (i.e. a GP provider who is a GP partner, single handed GP, or a GP shareholder) must resign from any involvement in a GMS contract, PMS agreement, or APMS contract. He/she cannot return to the NHS either as a GP provider, salaried GP, freelance GP locum, out of hours GP, or as an employee for at least 24 hours. This requires the GP to resign from their GMS contract and from any other NHS work for a minimum period of 24 hours.
After this period they may return to NHS employment, including provider status in a GMS contract, but cannot work for more than 16 hours per week in the first month following the break in service.
Therefore, if an individual (single-handed) GP wishes to retire, the GMS contract will automatically terminate on the retirement date if succession arrangements have not been agreed. Normally three months notice of termination should be given by the GP (GMS regulation, schedule 6, paragraph108).

Medical – registering to become a limited company

Can a standard GP partnership, GMS or PMS, register to become a limited company, as long as the same GPs who are partners are the shareholders?

A limited company is a separate legal entity from the current parties of a GMS or PMS partnership. The request to become a limited company is considered to be a significant change of existing contracting arrangements and may be subject to procurement law. The area team is no longer contracting with the individuals but a new contractor and this may warrant the need to go through a procurement and open tendering process as there is no automatic right to transfer the contract between contractors.

For new GMS contracts, the area team can contract with a limited partnership so long as one of the partners, who must be a GP, remains un limited. The rules are similar for PMS except that for the purposes of the contract the parties to the contract are considered a qualifying body.

Area teams should review the regulations for each contracting route to establish the criteria for holding the contracts. PCC recommends that area teams seek legal advice where the structure of the organisation is unclear.

Area teams should also establish the nature of a limited company as certain types of organisations are not currently suitable. For example, area teams cannot contract with a limited liability partnership (LLP) under either GMS or PMS.

In respect of a single hander taking a limited company as a partner, I don't believe this is possible for the reasons stated above but you would be best advised to seek legal advice in this respect.

It is important to note that individuals can form a limited company for their own business purposes outside their NHS contract. That is to say that area teams’ contracting arrangements need not be affected by the business decisions of the individuals.
Please refer to the variations policy on the NHS England website for further details.

Medical – patient allocations

If a patient is allocated by Primary Care Shared Services is the practice contractually obliged to keep the patient for a minimum period of three months – even if the patient is outside their catchment area?

An area team cannot consider the removal clauses without having due regard to those set out in respect of assignments (detailed below) to establish whether the area team was entitled to assign a patient to a practice in the first instance:

32. Assignment of patients to lists: open lists

  1. The Board may, subject to paragraph 34, assign a new patient to a contractor whose list of patients is open.

  2. In this paragraph and in paragraphs 33 and 35 to 37, a "new patient" means a person who -

  1. has been refused inclusion in a list of patients or has not been accepted as a temporary resident by a contractor; and

  2. wishes to be included in the list of patients of a contractor in whose area (as specified in accordance with regulation 18(1)(d)) that person resides.

Regulation 18(1)(d) states: the area as respects which persons resident in it will, subject to any other terms of the contract relating to patient registration, be entitled to -

  1. register with the contractor, or 

  2. seek acceptance by the contractor as a temporary resident;  

33. Assignment of patients to lists: closed lists

  1. The Board may not assign a new patient to a contractor which has closed its list of patients except in the circumstances specified in sub-paragraph (2).

  2. The Board may, subject to paragraph 34, assign a new patient to a contractor which has closed its list of patients, if –

  1. the assessment panel has determined under paragraph 35(7) that patients may be assigned to the contractor in question, and that determination has not been overturned either by a determination of the Secretary of State under paragraph 36(13) or (where applicable) by a court; and

  2. the Board has entered into discussions with the contractor in question regarding the assignment of a patient if such discussions are required under paragraph 37.

34. Factors relevant to assignments

In making an assignment to a contractor under paragraph 32 or 33, the Board shall have regard to -

  1. the wishes and circumstances of the patient to be assigned;

  2. the distance between the patient’s place of residence and the contractor’s practice premises;

  3. any request made by any contractor to remove the patient from its list of patients within the preceding period of 6 months starting on the date on which the application for assignment is received by the Board;

  4. whether, during the preceding period of 6 months starting on the date on which the application for assignment is received by the Board, the patient has been removed from a list of patients on the grounds referred to in—

    1. paragraph 20 (removal from the list at the request of the contractor);

    2. paragraph 21 (removal from the list of patients who are violent); or

    3. the equivalent provisions to those paragraphs in relation to arrangements made under section 83(2) of the 2006 Act or under section 92 arrangements;

  5. in a case to which sub-paragraph (d)(ii) applies (or the equivalent provisions as mentioned in sub-paragraph (d)(iii) apply), whether the contractor has appropriate facilities to deal with such patients; and

  6. such other matters as the Board considers relevant.

The practice has defined a boundary in which they will accept registrations and this will be set out in their contract and therefore accepted by the commissioning body (NHS England). If the assigned patient is residing outside of that boundary, and the practice never agreed in writing to accept the patient in the first instance, then it could be argued that NHS England hasve not had full regard to regulations 32(b), 18(1)(d) and 34(b) in making this assignment.

In addition, there is no regulation underpinning the requirement for practices to retain assigned patients for a minimum three month period. The three month rule came about as a matter of negotiation between PCTs and LMCs to avoid patients constantly being moved between practices at a time when practices operated “open but full” and there were a large number of patient assignments being made.
The area team should consider the entire regulatory obligations on both parties when considering how firm a stance to take. It could be argued that it is not in the patient’s best interests to be registered with a practice in whose boundary they do not reside and whether their health needs would be better met by being registered with a practice closer to their home address. The area team must also consider that this arrangement does put additional strain on the practice when assigning out of boundary patients as they are obliged to deliver to them the full range of services including home visits.
It is very important for area teams to be sure of their own duties and to act within the regulations.

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