Commissioners must drive but leave providers to steer new care models

6 October 2017

Commissioners can prompt local providers to embrace new service models and accountable care, according to Hill Dickinson partner Robert McGough.

Addressing a recent PCC event on contracting for new care models, McGough said: “As a commissioner you can drive provider behaviour – for example by saying ‘we want one diabetes contract’ or you want to commission one accountable care provider. Then providers will have to think about working together and how such a structure could operate. But the providers should be deciding the right model for them to collaborate – or indeed whether to collaborate.

“The procurement regulations are supportive of appropriate pre-procurement engagement with the market.”

Asked how long it would take us to see an NHS ACO, McGough suggested that some ACOs operated as prime contractor models led by foundation trusts could potentially be up and running by next April given they already had a statutory footing and significant freedoms. By contrast, he suggested that new collaborations, where there are complex configurations of providers and/or little track record of organisations working together, could face a journey lasting several years.

Legal requirements to consult the public could also be time-consuming where they are triggered as part of a new care model, he cautioned.

Referring to NHS England’s recent publication of three potential integrated models – virtual, partial and full integration – McGough questioned whether GPs would always be the right group to lead an MCP or ACO. Under new consultation proposals GPs can set aside their GMS or PMS contract and become salaried employees of the new provider organisation but could reactivate their contract later (see ). Given this “right to return”, McGough suggested, having GPs at the centre of the management structure risked destabilising the MCP if some of the participating practices exercised that right.

While the decision on leadership of the provider organisation would be shaped by factors such as management of risk and tax, employment and pension issues, McGough said that a further determinant could be what services the MCP will actually provide and the position of primary care.

The evolving ACO contract is similar to the current NHS standard contract. However, important changes include updated primary care directions that allow primary medical services to be commissioned in a streamlined way within the ACO contract, alongside a range of other services across different settings.

To assuage concerns at the potential risks associated with larger and longer contracts, commissioners are being handed some additional powers through the new contract to ameliorate the impact if a provider runs into problems. These include additional powers for commissioners in relation to sub-contractors, extended transparency and reporting requirements, pre-conditions (where relevant) around the distribution of profits and the ability to include break clauses to help commissioners and providers response to uncertain future developments. New accountability and regulatory arrangements are also being developed.

Among the changes already emerging in early accountable care contracting arrangements are the shifting to new provider organisations of some activities previously carried out by commissioners.

Overall responsibility for those functions remained with clinical commissioning groups (CCGs).

Commissioners are asking providers to do things CCGs may previously have done. CCGs and providers have certain statutory duties which cannot be transferred. Some commissioners are talking about the ACO managing elements of their commissioning arrangements, for example supporting CCGs in their duties to develop population health planning, managing resources, addressing health inequalities and risk stratification of the population to enable services to be appropriately directed.

Local arrangements such as the transfer of commissioning activities would be subject to the integrated support and assurance process (ISAP) run by NHS England and NHS Improvement to oversee the awards of novel contracts. This process is intended to give all parties opportunities to assess their readiness to sign a contract. ISAP is developed to provide assurance at specified points throughout the procurement process. The whole contract award process could typically therefore take 12 to 18 months.

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NHS England’s proposed contractual approaches for accountable care models

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