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contracting considerations for community healthcare

28 September 2016
The National Framework for Continuing Healthcare published in 2012, and subject to regular review, provides national guidance on the eligibility of individuals for the funding of ongoing care and support from health and social care professionals as a result of illness, accident or disability. 

The principle is that the NHS will arrange and fully fund a package of ongoing care – ‘Continuing Healthcare’ (CHC), where it is established via appropriate assessment that the individual concerned has a primary health need. In such cases, the patient can receive NHS Continuing Healthcare in a variety of settings such as in their own home or in a care home. NHS Continuing Healthcare is free, unlike social and community care services provided by local authorities for which individuals may be charged. Where an individual is found to be eligible for Continuing Healthcare, the NHS will, therefore, pay for services such as community nursing or specialist therapists and other associated social care needs, as well as covering care home fees (including board and accommodation). Occasionally, a joint package of care (JPOC) may be agreed with the local authority. 

Where an individual is not eligible for CHC but still has certain health needs, the NHS may pay for part of the package of support through NHS-funded nursing care (‘FNC’). This only covers nursing requirements. Any of the more general social care tasks provided by a registered nurse in a nursing home context are out of scope. 

The Contract

The NHS Standard Contract (the ‘Contract’) – now also available, for some situations, in a shorter form version - must be used when a CCG commissions community healthcare, irrespective of whether that care is provided domestically, in a residential or nursing home or is part of a JPOC.  

The Contract contains a number of provisions that are non-negotiable and it is important to ensure all of the provisions and obligations are understood. Examples of notable clauses include:
  • providers must run services in line with recognised good healthcare practice and must comply with national standards on quality, including the NHS Constitution and Fundamental Standards, and have CQC registration (Service Condition (‘SC’) 1)
  • providers must adhere to various staffing standards (General Condition (‘GC’) 5) e.g. ensuring sufficient appropriately registered, qualified and experienced clinical and non-clinical staff are available at all times
  • service standards must be maintained through compliance with the NHS’s national and local quality standards and the provider must ensure that ‘never events’ do not occur (SC3) – a continual process of review and evaluation is also required, taking into account patient feedback and complaints etc
  • providers must have policies and procedures in place that support high-quality care, e.g. in relation to complaints (SC16), safeguarding (SC32) and duty of candour (SC35)
  • providers must maintain appropriate indemnity cover (GC11).

Top tips 

  1. Remember that GCs and SCs are set in stone – Ensure familiarity with the GCs and relevant SCs to ensure that services will be compliant. Likewise, any existing provider should regularly review its practices to ensure it remains compliant, particularly where the Contract is varied to include annual updates.

  2. No signature? No excuse – Given the robust procurement processes that NHS commissioners must comply with by law, both parties should reasonably be aware in advance that the terms of the Contract are intended to apply and therefore the likelihood of them being implied is high. Read the tender – sometimes these state that a response is a commitment to contract. The absence of ink does not equate to the absence of a contract!
     
  3. You get what you pay for - Whilst the GCs and SCs are prescribed by the Contract, there are a number of commercial terms contained in the 'Particulars'section that can be locally agreed, such as contract duration, payment provisions, service specifications and transitional arrangements. Take care to ensure that the drafting reflects the commercial intention and that the services are clearly defined to head-off potential disagreements (e.g. over what is included in any fixed fee). This is of particular importance in FNC and JPOC arrangements where the NHS will only fund part of a patient’s care received from the provider. In JPOC arrangements, ensure the split and responsibility between the NHS and LA is clearly documented.

  4. Record any variations – It is imperative that any changes (e.g. to the package of care, or fees) are approved at the appropriate level and recorded in writing. The Contract contains a variation process at GC13, though any written acceptance of the updated terms may provide a degree of evidence. Ensure all changes (e.g. to price) are reflected where there’s an annual roll over of the Contract.  
The common theme that prevails is that the key to a strong contractual relationship is certainty. Know precisely what you are committing to, and know that you can deliver on your obligations. So long as you have this in mind from the outset, you can focus your energy on delivering quality care.  

This article was first published in Community Care Market News.

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