Draft updated Who Pays Guidance now released

New ‘Who Pays?’ Guidance (‘the Guidance’) has been published in draft form in readiness for the changes under the Health and Care Act 2022 when Integrated Care Boards (‘ICBs’) will be established and take over the functions previously held by CCGs with effect from 1 July 2022. The new guidance is to replace the previous version of the ‘Who Pays?’ published in 2020. The draft guidance has been published at this stage in recognition that the NHS needs to know what rules are likely to apply in advance of 1 July. 

In the main, the guidance is updated to reflect the change in commissioning responsibility from CCG to ICB with very minimal changes to the commissioning rules that we are already familiar with.

NHS England » Who Pays? Determining which NHS commissioner is responsible for commissioning healthcare services and making payments to providers

The NHS (Integrated Care Board Responsibilities) Regulations 2022 (‘the Regulations’) which underpin some of these arrangements have also been published and are due to come into force on 1 July 2022.

The National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022 (legislation.gov.uk)

Here is a summary of some of the key areas set out in the guidance:

1. People for whom an ICB is to have responsibility 

   Under the current commissioning arrangements, the general rule is that responsibility falls to the CCG in which the patient’s current registered GP practice is a member. The new guidance aims to provide for continuity of these arrangements, however the process  will differ slightly.

   This is now called ‘core responsibility’. From 1 July 2022, GP practices will not be members of ICBs in the same way as they were with CCGs so the rule is that responsibility will fall to the ICB with which the patient’s registered practice is associated. The association of practices with ICBs is based on the historic CCG membership of each practice, so there should be continuity with current arrangements. 

   Responsibility for patients not registered with a GP will continue to fall to the ICB in whose area the patient is ‘usually resident’.
    

2. Responsibility for detention and aftercare under the Mental Health Act 

   The legal framework underpinning NHS responsibility for commissioning detention and aftercare services under the Mental Health Act 1983 (MHA) will change under the new Regulations. Their effect will be, broadly, to bring the legislative position on responsibility for commissioning these services into line with the rules on payment responsibility which have been set out in Who Pays? since 2020. 

   Where an individual is first detained under the MHA, the ICB which has core responsibility for them at that point is responsible for arranging and paying for:

   a) the detention in hospital and associated services; and
   b) (with the relevant local authority) the subsequent section 117 aftercare, 

   until such point as the patient is discharged from aftercare or dies.

   This reinforces the principle that responsible commissioner for an admission under the MHA and subsequent s117 aftercare will be determined by GP registration at the time of initial detention under the MHA. This is intended to be clearer and bring the law in line with NHS guidance.
    

3. Transitional arrangements

   If a CCG is funding an episode of care on 30 June 2022, this will automatically transfer to its successor ICB on 1 July 2022. This is also true of funding arrangements under the exceptions to the general rule when a CCG has been deemed a ‘placing CCG’.

   Transitional arrangements in relation to patients already detained in hospital under the MHA or receiving a package of s117 aftercare vary and are set out in the guidance, reflecting the change to the position which occurred on 1 September 2020.
    

4. Transition to adult continuing care 

   The updated guidance and Regulations extend the exception to the general rule applying to young people who transition into adult continuing care placements. The exemption applies so that the placing ICB at the point at which the child entered the accommodation retains commissioning responsibility. The change means that, in relation to transition to adult care, placements in residential education establishments are to be treated in the same way as those in care homes, children’s homes and independent hospitals. The new rule will apply to assessments for adult continuing care on or after 1 July 2022.

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