Updated: Who pays? Guidance coming into effect 1 September 2020

Background

The ‘Who Pays?’ guidance sets out the framework for establishing which NHS body is responsible for paying a provider of healthcare services for an individual’s NHS care and treatment. The guidance is published by NHS England pursuant to section 14Z8 of the NHS Act 2006 (as amended by the Health and Social Care Act 2012). All CCGs must have regard to the guidance. 

The law in relation to NHS commissioning is set out in a number of different pieces of legislation, but primarily these include:

• NHS Act 2006 (as amended)
• NHS Commissioning Board and CCGs (Responsibilities and Standing Rules) Regulations 2012, as amended (the ‘Standing Rules’)
• NHS (CCGs - Disapplication of Responsibility) Regulations 2013 (the ‘Disapplication Regulations’)
• Exercise of Commissioning Functions by the NHS Commissioning Board (Coronavirus) Directions 2020
• Mental Health Act 1983

Section 147Z of the NHS Act 2006 as amended, makes provision for NHS England to publish a document specifying ‘circumstances in which a clinical commissioning group is liable to make a payment to a person in respect of services provided by that person in pursuance of arrangements made by another clinical commissioning group in the discharge of its commissioning functions’. Section 14Z7(2) states a CCG is required to make payments in accordance with any document published under subsection (1) - noted in the Who Pays? guidance as binding on CCGs.

The update

Since the 2013 guidance was issued, there have been changes in law in relation to certain areas of commissioning and explanatory notes released in relation to the guidance over time. The updated guidance aims to bring together the various updates into one document.

The general rule of the responsible commissioning CCG being that where the patient’s GP practice is a member remains. Exceptions to that general rule are shown in section D, paragraphs 12-19.

There are important changes detailed in paragraph 13 on stays in hospital, in paragraph 14 on discharge from hospital and continuing care and in paragraph 18 on detention and section 117 aftercare under the Mental Health Act. 

New mandatory arrangements for dispute resolution are set out in Appendix 1 and a separate Appendix 4 document which must be completed for arbitration. 

The update also aims to set out under the section 147Z powers noted above the limited circumstances where responsibility for payment will differ from the statutory position on responsibility for commissioning. 

The new rules set out in the updated Who Pays? guidance do not apply retrospectively. However, outside of new rules brought in under this guidance, it is said at paragraph 1.7 that 
‘In all other respects, this Who Pays? gives an accurate position on responsibility for commissioning and payment prior to 1 September 2020 and should be used as the basis for resolving any disagreements in relation to historic or ongoing cases’. It is made clear however that this guidance is not to be used to revisit funding arrangements where there is no existing disagreement. 

The primary principle that no necessary assessment, care or treatment should be refused or delayed because of uncertainty or ambiguity as to which NHS commissioner is responsible for funding an individual’s healthcare provision remains. 

Key changes and updates

• Useful links to documents setting out services commissioned by NHS England are set out within section 5 of the guidance.
• Formal dispute resolution process managed by NHS England/Improvement set out in Appendix 1 with participation and cooperation being mandatory, and the outcome being binding on CCGs. This applies to new disputes arising from 1 September 2020 but also any existing dispute where resolution is not in hand. 
• Paragraph 7.4 sets out what arrangements CCGs must put in place whilst disagreement is in the process of being resolved, including sharing costs equally on a ‘without prejudice’ basis pending resolution.
• Paragraph 13 sets out an exception for a patient who changes GP or address during a hospital inpatient stay (excluding those covered by other exceptions such as those detained under MHA or subject to continuing care arrangements). The power to require payment that differs from the statutory commissioning responsibility is being used here, to specify that the GP registration/usual residence is to be applied as at the point of admission for that inpatient hospital spell. That CCG will pay for the whole duration of the hospital spell even if a change in GP/address occurs. This applies to admissions on or after 1 September 2020. 
• Paragraph 14 – out of area placements of adults for continuing care – from 1 September 2020, new packages of care on discharge from hospital will be funded by the NHS for up to six weeks following discharge and CHC assessment are to restart from the same date. Responsibility for funding new care and support will operate on a ‘placing CCG pays’ approach rather than on ‘receiving CCG pays’ approach which applied until August 2020 under the Hospital Discharge Service: Policy and Operating Model under transitional arrangements set out. New rules regarding discharge to assess which were not in the 2013 guidance are covered under 14.18-32. 
• There are new rules under Paragraph 14 for short term ‘discharge to assess’ placements on hospital discharge. CHC referrals should continue to take place outside of hospital during the discharge to assess period which will be funded for a maximum six week period. The CCG responsible for paying for the hospital stay will be responsible for the short term placement (or NHS contribution to it) where no other exception applies and the same CCG will retain responsibility for any residential continuing care placement which follows directly on from the short term placement. This will apply even where discharged to out of area accommodation and the patient registers with a GP in a different CCG area. 
• For CHC responsibility, unless covered by the above discharge to assess arrangements, responsibility for CHC placement in a care home or independent hospital will be based on GP registration applied at the point at which a referral for NHS CHC assessment for the patient was first received by any CCG, even where that GP registration may change prior to assessment being completed. This is to avoid any perverse desire to delay CHC assessment due to the commissioning rules. 
• Transitional arrangements are provided for at paragraph 14.33-38 – these must be reviewed urgently by CCGs to confirm which patients they will have responsibility for. A deadline of 31 December 2020 has been set for transfer processes to be completed which includes identifying all patients for whom the CCG is responsible for undertaking CHC assessments.
• Clarification of the differing position for CCGs to local authorities for children placed out of area upon reaching the age of 18 in paragraph 15, subject to paragraph 16.
• Paragraph 18 sets out the position for section 117 aftercare under the MHA 1983 (pending any new legislation/guidance to be published) as well as payment for hospital care for detained patients. The guidance recognises there is a perverse financial incentive for CCGs not to commission local capacity for detained patients where they could escape payment if placed out of area – therefore the section 147Z powers are being used to require CCGs to pay for care on different terms to statutory commissioning responsibility. 
• The guidance states the rule at 10.2 (GP registration or failing that, usual residence) will determine payment for detention and aftercare (where NHS England is not responsible for commissioning) at the point of initial detention (whether for assessment or treatment). This will continue throughout any subsequent periods of detention and aftercare, until such time as s.117 aftercare is actually discharged. This is a significant change in relation to responsibility which is now considered to arise on section 2 MHA detention, notwithstanding no s.117 MHA responsibility arises from such a period of detention if there is no subsequent detention under section 3 or other qualifying section. s.136 MHA is excluded from being classed as a period of detention. 
• Mandatory transitional arrangements have been implemented at paragraph 18.10

Summary

• Look to paragraph 10.2 and the exceptions under section D initially when determining responsibility for commissioning and payments being made
• Be aware of the mandated exceptions and transitional arrangements noted above, where statutory commissioning responsibility differs to the payment requirements under the guidance, in particular arising under paragraph 14 and 18

Comment

It is welcome to have updated guidance as the previous 2013 guidance had become significantly outdated in some areas and responsible commissioner disputes were arising with relative frequency in more complex areas. 

Areas such as section 117 MHA aftercare under the new guidance may still lead to some tension given the statutory commissioning responsibility. The intention of the Care Act 2014 amendment to s.117 MHA was to align local authority and CCG responsibility in this area, but the guidance asserts that payments will not be made in accordance with that commissioning responsibility. 

CCGs will need to be quick to review cases under the transitional arrangements arising under paragraph 14 in particular and should take steps to assign responsibility for this task as soon as possible. 

For any advice required in relation to the new guidance, please do not hesitate to contact our health advisory team: Sharon Thomas, Joanna Trewin, Kiran Bhogal or Ben Troke.