NHS England is consulting on proposals to update licensing and regulatory provisions for independent sector providers of NHS services, with particular relevance to those subject to continuity of service (CoS) licence conditions including those likely to be determined to be ‘hard to replace’. Where key services are withdrawn with little or no alternative in place, patients in a particular locality, or even nationally, struggle to access the care they need. The proposals therefore look to provide further safeguards against the risk of service closure linked to quality-related concerns and include a greater focus on monitoring and improving quality governance standards at independent sector providers than previously.
The consultation is open until 22 February 2023, and includes proposals:
- To update the risk assessment framework (IPRAF) and reporting manual for independent sector providers of NHS services including detail on how NHS England will oversee quality governance standards;
- To introduce ‘mandated support’ for independent sector providers if significant failings by them put strategically important services at risk; and
- To include policy on providers determined by NHS England to be ‘hard to replace’ should they fail for financial or quality reasons.
This consultation is the latest of relevance to independent sector providers in relation to their NHS provider licence conditions released since the Health and Care Act 2022 came into force last year. There are also outstanding consultations relating to:
(i) the NHS provider licence more generally including provisions which will impact the independent sector; and
(ii) NHS Provider Enforcement Guidance
It is of note that the provider licence consultation also includes requirements relating to digital capabilities including a proposed condition requiring compliance with information standards published under the Health and Social Care Act 2012 and with levels of digital maturity required by NHSE through its published guidance.
Here, the conditions being consulted on are targeted at ensuring sustainable ongoing patient care is maintained by independent sector providers of NHS services. In the past, regulation has been focussed on the financial risks likely to lead to a provider failing, however quality governance is also known to be an important factor in this happening. If the CQC were to suspend services being provided by an independent sector provider, NHS patients could experience decreased access to service or even inability to access those services at all.
The updated IPRAF (a draft of which is included with the consultation) sets out the approach which NHSE will take to assessing quality governance standards to ensure these offer reasonable safeguards against services being closed down either by the Care Quality Commission or at the provider’s own initiative. The concept of ‘mandated support’ is also being consulted on to be applied where there are significant concerns or other methods of intervention have not been effective. The introduction to the consultation notes that the intention behind the proposals is not to put excessive or unwarranted burdens on providers, rather to only introduce additional regulation where it delivers clear value.
Going forwards, the proposal is for providers subject to CoS conditions to be allocated two risk ratings – one for financial risk, in line with current methodology, together with a second for quality governance. These will not be published but the risk rating will determine how much engagement a provider is expected to have with NHSE. Quality governance assessment will follow a four-stage approach – Monitoring, Risk Assessment, Investigation, and Action. The consultation proposals provide more detail on what each of these stages involves and how the quality risk rating of low, medium or high will be determined.
Where quality stress is a concern NHSE will attempt to resolve this using measures including enhanced monitoring, regional support, CQC interventions or contract levers. However, where quality risk is high mandated support may be used as a method of last resort where a set of criteria is met including factors such as:
- failure to intervene being likely to lead to loss of strategically important services
- evidence that the provider cannot manage sustainable improvements without intervention
- interdependent risks eg contagion risks to other providers in the system if services close
- evidence of catastrophic quality or safety failures
The final section of the consultation considers factors which NHSE will use to determine whether an independent sector provider should be designated as ‘hard to replace’.
This consultation is a further piece in the jigsaw of updates being proposed to the provider licence and the first to be of relevance exclusively to independent sector providers of NHS services. Should you require any further information in relation to the implications of these proposals, please do not hesitate to contact us.
- IPRAF
- Independent Sector Risk Assessment Framework
- Health and Care Act 2022
- NHS England
- Independent Health
For further information, please contact:
Gemma Badger, Hill Dickinson
gemma.badger@hilldickinson.com
