Procuring Community Services and Outcome Based Commissioning
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Robert Breedon (Partner, Wragge & Co) is an experienced commercial lawyer with expertise in the healthcare sector having worked at the Department of Health from 2006 to 2011. He advises on a range of commercial transactions including the use of various contractual models and commercial structures for the delivery of clinical services. He regularly advises on the use of innovative contractual structures (such as Alliance contracts and other joint ventures) for the delivery of integrated care. Robert leads Wragge Lawrence Graham's support for Commissioners and has advised a number of CCGs on collaborative arrangements between health and social care commissioners. He also advises a number of independent sector clients who provide services or products to the NHS.
Transcript of Procuring Community Services and Outcome Based Commissioning
Services in the Community – the Art of the Possible Legal Considerations
14 July 2014
Robert Breedon - Partner
Agenda Legal Considerations
EU procurement rules and the new Directive
NHS (Procurement, Patient Choice and Competition) Regulations 2013
The NHS Standard Contract 2014/15
Duty to involve service users
Competition Law
Further issues for consideration in surgery
Current projects
Cambridgeshire and Peterborough
Staffordshire
South Somerset
Oxfordshire
Croydon
Herefordshire
Mid-Nottinghamshire
EU Procurement
EU Procurement Regulations
Healthcare services fall under Part B of Schedule 3 to the Public Contracts Regulations 2006 – currently allowing CCGs significant flexibility when procuring community services
The „trigger‟ is whether there is likely to be any „cross-border interest‟ – if so, then transparency obligation requires advertisement
CCGs are recommended to test and document any assumptions about the existence of cross-border interest as part of the decision about which procurement option to use
EU Public Sector Directive
New 2014 Directive – expected into force in UK by late 2014.
- No Part A and Part B distinction but a „light touch regime‟ for health, social and other community services
- Above €750,000 obligation to advertise: PIN or OJEU?
- Possibility to limit opportunities to staff mutuals and social enterprises if certain conditions met
- Details left to UK Government
- Cabinet Office indicated that the 2013 Regulations (below) may comprise the „light touch regime‟ for clinical services
- Guidance to come from Monitor in due course
NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013
The overriding objective (Regulation 2) is that CCGs
“must act with a view to
- (a) securing the needs of the people who use the services,
- (b) improving the quality of the services, and
- (c) improving efficiency in the provision of the services,
including through the services being provided in an integrated way (including with other health care services, health-related services, or social care services)”
2013 Regulations (cont’d)
To competitively tender or not to competitively tender? That is the question …. (Hamlet, Act 3 Scene 1)
Regulation 3(3) provides that the CCG must:
“procure the services from one or more providers that
(a) are most capable of delivering the objective referred to in Regulation 2 in relation to the services, and
(b) provide best value for money in doing so”
How can we identify the most capable provider?
See Monitor Guidance from December 2013
NHS Standard Contract 2014/15
Flexibility on contract duration
Specific reference to innovative contracting models
- Accountable Lead Provider
- Integrator
- Alliance contract
Ability to use „Local Variation‟ to agree risk/reward mechanism and/or capitated budget
Can agree health „outcomes‟ as Local Quality Requirements
Duty to involve service users
Need to involve service users when proposals are at a formative stage – so as not to pre-determine the outcomes
Need to involve in (i) the planning of arrangements (ii) the development and consideration of proposals and (iii) decisions affecting commissioning arrangements.
Engage with all those who are/may be affected any proposals
Provide sufficient information to allow „informed and intelligent‟ consideration
Ensure compliance with Engagement Strategy and Procurement Strategy
Competition Law
General competition law principles enforced by Monitor/CMA
Regulation 10 of the 2013 Regulations:
- Anti-competitive behaviour is prohibited “unless it is in the interests of healthcare service users”
- Balance of “costs” versus “benefits”
- Commissioners expected to identify and describe the benefits to be achieved through new service models
Further issues for consideration in surgery
When commissioning community services, consider:
Information and assistance required from existing providers
Potential for „kingmaker‟ role of key providers
- Use of „protocols‟
How to best involve primary care
Achieving the right outcomes and the right number of outcomes/indicators
Identifying the level of incentive „outcome based‟ payment
How best to define the services that are in scope
TABLE DISCUSSION
Contact Details
Robert Breedon Wragge Lawrence Graham & Co LLP
Tel: 0203 636 7962 Mobile: 07894 253120
Email: [email protected]
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