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Dentists, COVID-19 & NHS contract delivery

Dentists, COVID-19 & NHS contract delivery


Expert view

* On 18th March the Chief Dental Officers of England, Wales and Northern Ireland first announced their recommendations that routine treatment should be reduced, in order to fit in with the government’s request that people consider reducing their travelling (i - see link below)

* On 20th March the Chief Dental Officer (CDO) of England recommended all dental practices substantially reduce routine appointments, avoid face to face urgent care or refer (ii - see link below)

* On 25th March the CDO of England published its third regulate update:- (iii - see link below)

- Dentists were instructed to cease providing routine treatment, and to remotely triage urgent care cases

- Announced arrangements for new local urgent dental care centres

- Due to the disruption to usual delivery during March 2019, practices annual UDA delivery would be measured over the annual year 1st March 2019 to 28th February 2020

Opinion suggested that this could be fair on some practices and unfair on others:-

- That NHS monies would continue to be paid on condition that dental practice personnel be made available for redeployment elsewhere in the NHS to assist in the COVID-19 response, and that they would be paid by practices at previous levels

- That the CJRS for furloughed staff would not also be available - “Practices benefiting from continued NHS funding will not be eligible to seek any wider government assistance to small businesses which could be duplicative”

- There was general confusion as to how this would apply to mixed practices. For example, in largely private practices with small NHS contracts, the NHS money would be far less than the CJRS that could otherwise be claimed

Commentators speculated that it would be fair if a pro rata principle applied, for example on the basis of the percentage of private versus NHS turnover, so that a similar proportion of staff could eb offered for redeployment elsewhere in the NHS, and the others furloughed for the CJRS.

Would staff have to be forced to do this alternative work? Or volunteers only? Would this over-ride employment rights and law? What if staff refused? Would contractors have their NHS money stopped?

* On 26th March the National Health Service (Amendments Relating to the Provision of Primary Care Services During a Pandemic etc) Regulations 2020 (iv - see link below) were laid before Parliament and became law next day.

These regulations made amendments allowing for the suspension of current GDS and PDS contract terms, and confirmed that NHS England may not take ‘enforcement action’ (breaches notices, termination, and possibly clawback) against contractors for failing to comply with their contracts during this period.

* On the evening of Friday 3rd April, the CDO and NHS England spoke in a live webinar and confirmed:-

- That the pro rata principle (for staff – private / NHS % of turnover) will indeed apply to mixed practices

- Local Area Teams should use common sense in applying the default March 2019 to February 2020 delivery data. Fairness should apply

- That more detail would follow “early next week” in an “Issue 4 of the Preparedness” regular updates. 

* On / around Saturday 4th April a publication entitled “Redeploying the Clinical Dental Workforce to Support the NHS Clinical Delivery Plan for COVID-19” (v - see link below) was circulated, and it was published on 7th April. This provided more detail as to:-

- Possible redeployment of dental personnel, roles, competencies

- The process, and the invitation of ‘expressions of interest’

- Clinical negligence and indemnity

- Briefly touched on NHS contract payments – “NHS England has agreed to continue to make monthly payments in 2020-21 to all practices that are equal to 1/12th of their current annual contract value”

- “For staff in UDA-funded dental practices further guidance will be provided separately to recognise the nature of various funding streams that underpins most NHS dental practices” 

- Contractors were asked to provide details of their staff in relation to the redeployment plan / availability. “Expressions of Interest” were to be submitted via an online form (vi - see link below)

* At around the same time, the document “Standard Operating Procedure Planning for Urgent Dental Care During the COVID-19 Pandemic” (dated 30th March) was circulated to some contractors in the East of England, along with a covering letter from NHS England (dated 7th April) which stated (inter alia):-

“Please can you confirm by no later than 5pm on Thursday 9 April 2020, that:

a) That you are following the Standard Operating Procedure

b) Your practice is triaging patients in accordance with the OCDO issue 3 guidance document and the NHS England and NHS Improvement Standard Operating Procedure, via the link below

If we do not hear from you by the deadline it will be assumed that you are not fulfilling your contractual obligations and therefore, we will be required to review your monthly payments.”

* On 15th April NHS England finally published its promised 4th update (vii - see link below) Highlights included:

- On mixed practices:-

“Contract holders wishing to claim against additional government support schemes should ensure this is in relation to their proportion of private revenue only.”

"We expect that as part of the 2020/21 reconciliation process, practices will be expected to declare that they have not applied for any duplicative government funding and provide evidence of the proportions of NHS/private income used in any applications for additional support.”

Think about and retain the evidence that will be necessary.

- On redeployment of staff:-

“Practices will be expected to demonstrate they have made every reasonable effort to offer staff appropriate opportunities to support the wider effort.”

It would be wise to formally document requests to staff and to show a paper trail.

- On the period March 19 - to Feb 20 on annual delivery / clawback:-

" Practices may agree with their commissioner to use the following activity ... for 2019/20 contract reconciliation:

a) 11 months April 2019 to February 2020

plus

b) in agreement with commissioners, an additional month that may be one of:

• March 2019 (default)

• March 2020 or

• average UDA delivery over an appropriate three-month period in 2019/20 agreed with their commissioner. "

* On 24th April, the CDO Sara Hurley and NHS England held their second live webinar for dentists (viii – see link below).

It contained a number of confirmations from earlier announcements and:-

- They confirmed that the location of the New Urgent Dental Centres (UDCs) would not be placed in to the public domain, in order to avoid the public turning up to them. Patients should phone their own dentists, who will triage them by telephone, and then, if appropriate, they would get an appointment and will be told when and where.

- In relation to how contracts will operate throughout the 2020/21 year, they confirmed that they are still working on answers to lots of questions e.g. when back to routine procedures will the UDA target for the remainder of the year be pro rata? Might there be any risk of clawback in connection with the COVID 19 period? They promised guidance by "next week".

- How long will the current period, in which dental practices are closed, last for? "for some time", "likely until the end of June", "cannot yet commit to a date."

- In relation to the deduction from the usual monthly NHS contract value payments to reflect the practice’s reduction in certain costs (primarily consumables), they said that agreement on a figure is "not yet agreed", will be "fair, proportionate and evidence-based" and they are looking to agree this "rapidly".

* On 28th May, the CDO and NHS England sent a joint letter to all NHS dental providers asking them to commence the resumption of face to face dental services on a phased basis in practices from the 8th June 2020, subject to practices meeting strict new guidelines in relation to infection prevention control (IPC and the use of PPE).

In relation to the measurement of activity (UDAs) and pay, the letter stated:

“Initially we will maintain the current temporary contract arrangements to make monthly payments in 2020-21 to all practices that are equal to 1/12th of their current annual contract value, subject to abatement for lower costs. We continue to work with the BDA on the mechanisms for the full 2020-21 contract year with the intention of reintroducing a link to delivery of activity and outcomes.”

* On 1st June, the NHSBSA via Compass asked all dental providers to complete a “Workplace Data Collection Form” (see link ix below) by which to collect information about each8 practice as to how the personnel in each practice had been used or deployed during the past weeks of the crisis. It caused some concern and confusion, as the form is complicated and time consuming, and with some suspicion as to the use the harvested data would be put (could it be used to support claims for clawback of monies?)

* On 5th June, the CDO and NHS England published “Standard Operating Procedure – Transition to Recovery – a phased transition for dental practices towards the resumption of the full range of dental provision” (see link x below).

For further advice on this or any other issue that concerns you at this time, please don't hesitate to get in touch. Alexander and his team would be very happy to help: ajh@meadeking.co.uk

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i) https://www.dentistry.co.uk/2020/03/18/scottish-welsh-cdos-coronavirus-advice/

ii) https://www.gdc-uk.org/docs/default-source/covid-19/issue-2-prepardness-letter-for-primary-dental-care-20-march-2020.pdf?sfvrsn=69d46d90_2

iii) https://www.england.nhs.uk/coronavirus/wp-content/uplo2s/sites/52/2020/03/issue-3-preparedness-letter-for-primary-dental-care-25-march-2020.pdf

iv) http://www.legislation.gov.uk/uksi/2020/351/made

v) https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/03/20200409-Redeploying-the-clinical-dental-workforce-FINAL-.pdf

vi) https://www.england.nhs.uk/coronavirus/returning-clinicians/dental-professionals/

vii) https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/03/C0282-covid-19-dental-preparedness-letter-15-april-2020.pdf  

viii) Watch again here:- https://youtu.be/SOrfyYQ8xbM

ix) Compass Workforce Data Collection Form: A Guide to help you with form completion in Compass Bussiness Services Recovery 

x) Standard Operating Procedure – Transition to Recovery – a phased transition for dental practices towards the resumption of the full range of dental provision