New ‘Who Pays?’ Guidance - What CCGs need to know

The headlines are:

• The central message is that no patient should ever be disadvantaged by disputes between CCGs over responsibility for commissioning and funding an individual’s healthcare.

• The fundamental aim is fairness in commissioning services for a CCG’s population and thus seeks to avoid any perverse incentives to delay processes or to maximise out-of-area placements.

• To this end, the new guidance consolidates and clarifies some of the areas which have been a focus for uncertainty/disputes in the past, including adding more examples of how the rules will work in practice.

• Whilst the general rules for determining responsible commissioner remain as before, the guidance expands the categories of exceptions; existing exceptions are clarified and have new examples (e.g. continuing healthcare) and some important new exceptions are added (e.g. inpatient stays where GP address changes, ‘discharge to assess’, s.117 aftercare, A&E attendances). These involve NHS England using legal powers to specify, in the guidance, which CCG will have responsibility for funding a person’s care. This may be different from the CCG commissioning it. There are important transitional arrangements for some of these exceptions.

• Underpinning all this is a new, mandatory dispute resolution process, and a significant shift in the funding of costs pending resolution; the parties will fund costs 50:50. Disputes should be resolved locally within ICS/STP areas, with advice being sought on specified topics from relevant officers in the regional teams of NHSE/I, and failing local resolution, a new arbitration process with binding outcomes.

In this article, we look in more detail at the new guidance and what it will mean in practice.

What’s changing (and what’s not)?

CCG responsibilities for commissioning health services are governed by legislation (e.g. the ‘Standing Rules Regulations’). These are not changing.

However, under its powers in the NHS Act 2006 (as amended), NHS England can specify in a document such as the ‘Who Pays?’ guidance that the CCG responsible for paying for a person’s care will be different from the CCG responsible for commissioning it under the legislation. Such a provision is binding on CCGs, which must make payments in line with this. Using this power, NHS England has decided to shift payment responsibility in certain scenarios (explained further below) to iron out perceived unfairness in the system and to encourage CCGs to make local provision for care/services by removing any perverse incentives not to do so which may have been created by the legislative commissioning rules.

Staying the same (but with clearer explanation/more examples)

The general rules for determining commissioning/payment responsibility are unchanged. As before, the general rule is that responsibility for commissioning and paying for health services (other than the specific services which NHS England is responsible for commissioning itself) will fall to the CCG of which the patient’s GP practice is a member, or, if the patient is not registered with a GP, to the CCG in whose area the patient is ‘usually resident’. This means that commissioning (and paying) responsibility will generally move from one CCG to another when a person changes their GP registration to a different CCG area. This general rule is subject to a number of exceptions - either where CCG responsibility does not move even if the patient does, or a CCG is responsible for paying even if the patient is not registered in their area.

One of the key exceptions to the general rule relates to out-of-area continuing care placements for which the position remains unchanged and as per the legislation - i.e. the ‘placing CCG’ must commission and pay for continuing care placements in care homes and independent hospitals in another CCG’s geographical area despite the patient becoming GP registered in that new area. With a view to reducing scope for uncertainty and disputes, the new guidance re-states in a clearer way how this exception works, with more examples added to illustrate how it applies in practice.

Payment responsibility changing

The new guidance explains that NHS England has decided to use its power to split off payment responsibility from commissioning responsibility in the following scenarios:

• Inpatient stays - Under the new guidance, a change of GP registration (or address) whilst a patient is in hospital - e.g. in anticipation of moving to a different area on discharge - will not trigger a change in CCG responsibility to pay for that entire inpatient spell. Liability to pay will be determined by GP registration at the point of admission. This is to avoid the complexities of splitting the cost of inpatient stays between CCGs and also to avoid CCGs passing on responsibility for what may only be temporary, short-term placements in the 6 week ‘discharge to assess’ period post-discharge.

• Assessing for NHS Continuing Healthcare - The ‘discharge to assess’ provisions set out in the government’s recently updated hospital discharge guidance mean that CHC eligibility assessments no longer take place whilst a patient is still in hospital and, instead, the person will be discharged (e.g. to temporary, short-term residential accommodation) with a view to assessment taking place within the 6 week period post-discharge. In order to avoid any perverse incentives for CCGs to arrange ‘discharge to assess’ placements in out-of-area accommodation, NHS England is again using its power to split commissioning and paying responsibilities by stipulating that the short-term placement must be paid for by the CCG which was responsible for the hospital spell from which the patient is being discharged, even if that placement is out-of-area. The same CCG will then be responsible for paying for any residential continuing care placement which follows directly from the short-term placement. Separately from the ‘discharge to assess’ cases, the guidance also seeks to avoid CCGs delaying CHC assessments where referral takes place in the community by stipulating that responsibility for paying for any resulting NHS CHC placement in a care home or independent hospital will be determined by the person’s GP registration as it was when the referral for CHC assessment was first received even if, during the period of assessment, the patient has changed GP and/or address to a different CCG area. CCGs will also need to be aware of the transitional provisions in the guidance relating to the temporary Covid-19 arrangements, with any necessary transferring of payment responsibilities to take place by no later than 31 December 2020.

• Mental Health Act detention and Section 117 aftercare - The new guidance introduces a significant change to the position on payment responsibility for inpatient detention under the Mental Health Act (which previously fell to the CCG for the area where the detaining hospital was located) and on payment responsibility for s.117 aftercare (which, since 2016, has fallen to the CCG where the patient was ‘ordinarily resident’ immediately prior to their detention). Under the new rules, for detentions taking place from 1 September 2020, NHS England is using its power to split off payment responsibility from commissioning responsibility to stipulate that - although commissioning responsibility will remain as per the legislation - the CCG responsible for paying for both the period of detention in hospital and the s.117 aftercare will be determined by the general rule - i.e. the person’s GP registration (or, usual residence) immediately prior to their detention in hospital. This CCG is regarded as the ‘originating CCG’ and retains responsibility for s.117 after-care, and any subsequent repeat detentions or voluntary admissions, until such time as the patient is discharged from s.117 aftercare. This responsibility for paying remains with the originating CCG regardless of where the patient may move to or which GP practice they are registered with. Whilst this new rule applies to detentions from 1 September 2020, it will be important for CCGs to be aware of some key mandatory transitional arrangements set out in the guidance, which determine responsibility for paying for detention and aftercare, depending on the patient’s status as at 1 September 2020.

• A&E care - This is another area in which NHS England is using its power to distinguish between CCGs’ commissioning and payment responsibilities by introducing a new provision that, for A&E services and services provided in urgent treatment centres, minor injuries and walk-in centres (which CCGs have to commission for everyone present in their geographical area, regardless of GP registration), the CCG responsible for paying for a particular patient will be determined according to the general rule - i.e. in accordance with GP registration (or usual residence). The rule does not change for emergency ambulance services which remain the responsibility of the CCG in the physical location where the journey commences.

Note that these changes to payment responsibilities in the guidance do not have retrospective effect and therefore only apply as of 1 September 2020.

What does the new dispute resolution process involve?

Whilst the previous version of ‘Who Pays’ did not stipulate any specific process for resolving disputes, this new version places a strong emphasis on the need for swift, decisive resolution of any disputes between CCGs about commissioning or paying responsibility by introducing a new dispute resolution process which must be followed. It has sought to address CCGs purposely delaying resolution, by making provision for the costs pending resolution to be split 50:50.

CCGs will be expected to first attempt local resolution, with ICSs/STPs being responsible for helping to resolve any disputes. As with previous guidance, disputes must never be allowed to impact negatively on a patient’s assessment, care and treatment or to delay payment to providers. With this in mind, the commissioners involved must agree that one of them will make the necessary arrangements for the patient’s assessment/care/treatment and they will share the costs of this 50:50 between them on a ‘without prejudice’ basis until the dispute is resolved, at which point the commissioner found to be responsible should reimburse the amount the other party has paid out.

In (what should be rare) situations where disputes between commissioners cannot be resolved locally, there is now a formal dispute resolution process in place, which will be managed by NHS England’s/Improvement’s national team, with the idea being that this should avoid commissioners having to resort to other forms of arbitration or the courts. Key features of the new process include:

• Participation in, and cooperation with, the process is mandatory.
• The parties will need to jointly submit to the national NHS England/Improvement team an agreed factual chronology (as per the template documentation provided). Each party will then be requested to submit ‘statements of case’ (again, as per templates provided).
• The national NHS England/Improvement team will then produce an arbitration report for the parties identifying, with reasons, which organisation is responsible for commissioning and paying for the services during the period in dispute.
• The outcome will be binding on the parties.
• The maximum retrospective financial adjustment required as a result of arbitration will be to the beginning of the financial year when the dispute was formally initiated.

This process will apply to new disputes arising from 1 September 2020 onwards, but can also be used for any existing disputes where resolution has not been reached.

How we can help

Our Healthcare Regulatory specialist teams can provide CCGs with advice and support in relation to the full range of issues which arise in the context of Responsible Commissioner and related matters, including:

• Ongoing disputes about the Responsible NHS Commissioner, including how the new rules in the ‘Who Pays’ 2020 guidance will impact and application of the transitional arrangements
• Training to teams on the new 2020 guidance
• Division of responsibility for health and social care
• Advice on collaboration with Local Authorities and other partner agencies
• Personal Health Budgets
• Section 117 aftercare, including CHC interface
• Challenges to CHC eligibility decisions, including Independent Reviews
• Court of Protection proceedings concerning CHC/s.117 funded patients
• Children’s continuing care