Procurement in practice: the
implications for the new
regulations
The legal framework: the new contracts for
primary medical care
James Clarke, Partner
17 July 2014
Background
What is Primary Medical Care?
No statutory definition, BUT
GMS Regs 2004 (as amended)
PMS Regs 2004 (as amended)
APMS Directions 2013 (as amended)
all govern the provision of primary medical services
If it’s primary medical care, one of the above
regulatory frameworks must apply
Primary Medical Care
GMS Regs 2004 (as amended)
Primary medical services comprise essential
services, additional services, enhanced services,
out of hours services
Essential services are defined in Regulation 15
‘…services required…for…patients…who are, or
believe themselves to be ill, with conditions from
which recovery is generally expected, terminally ill,
or suffering from chronic disease’.
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The problem with enhanced services
Traditionally considered primary medical services,
provided by GPs alongside essential services and
delivered in a practice setting
If enhanced services are primary medical care then
the commissioner is NHS England
If enhanced services are not primary medical care,
then the commissioner is CCGs
When is primary medical care not primary medical
care?
Specification design – why is it so
important?
Patient safety
Contractual certainty
Effectiveness of remedies
To preserve lawfulness of commissioning
arrangements – NHS England and CCGs –
avoiding challenge on the basis of regulatory
non-compliance
CCGs may commission primary medical services
with delegated authority from NHS England
CCGs already do this for OOH services
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Prior contracts for Primary Medical
Services
GMS contract
to April 2014 maintained by DH
now maintained by Capsticks
regular regulatory updates
updates served by notice – no negotiation required
updates consolidated into contract
payment governed by regulation (most recent update
being The General Medical Services Statement of
Financial Entitlements (amendment) Directions 2014)
contract form is strongly governed by regulation
Prior contracts for Primary Medical
Services (2)
PMS Contract
exists in various forms (Lockharts the most common)
now drafted and maintained by Capsticks
regular regulatory updates
updates served by notice – no negotiation required
unless commercial variation required
updates not consolidated into contract
payment for local agreement
contract form is strongly governed by regulation
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Prior contracts for Primary Medical
Services (3)
APMS Contract
exists in many forms (Wragges, Beachcrofts, etc)
now drafted and maintained by Capsticks
annual regulatory updates
updates served by notice – no negotiation required
unless commercial variation required
updates consolidated into contract
payment for local agreement
contract form is flexible – draws from PMS Regulations
as a minimum standard only for contractor
New national standard primary medical
contract forms
GMS contract
Updated from 2013 version in accordance with the
National Health Service (General Medical Services
Contracts and Personal Medical Services Agreements)
Amendment Regulations 2014
Design based purely on pre-existing form – no surprises
Full BMA approval has been obtained
Gateway process completed – now online
Variation notices in respect of existing contract to be sent
out – form to be published
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New contract forms (1)
PMS Contract
Completely new format
Clarity over financial provisions such as liability for
pensions payments – all in self-contained finance
schedule
No licence fee
Addresses problems encountered by commissioners in
managing previous forms
Expected to pass Gateway process later this month
New contract forms (2)
APMS
New national standard form for use in respect of all primary
medical care services not directly contracted under GMS or
PMS forms
May be used for any distinct or stand alone services including
those commissioned alongside GMS and PMS services
A contractor may hold more that one primary medical care
contract (unless disqualified)
Gateway process completed – now online
Use of APMS not optional for primary medical care
– NHS
Standard Contract must not be used
Note continued relevance and importance of NHS
Standard Contract for other services
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New contract forms (3)
APMS (continued)
May be followed by a ‘short form’ APMS for low
value/short duration services to increase appeal to
providers
May apply amends to a version of NHS Standard
Contract for certain integrated services, i.e. OOH and
Urgent Care, police custody services, etc
Subject to minimum requirements set out in PMS,
offers full flexibility in term, termination, pricing,
sub-contracting and other key commercial deal points –
including KPIs and performance management
Implementation
New contracts
GMS
Reversions from PMS
No ‘entirely new’ GMS – procurement!
PMS
as a condition for provider requested variations
by agreement (as part of review)
No ‘entirely new’ PMS
APMS
all new procurements of contracts for primary medical
care services
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