Dental Access Procurement
The “PDS Plus” is the model contract to be used by PCTs for their Dental Access Procurements. It is the latest addition to the standard NHS primary dental contracts and is supplemented by Department of Health guidance in the form of a “user guide”. From our experience in advising PCTs on the PDS Plus, there are a number of further issues that PCTs should consider when procuring dental services using this contract model.
The PDS Plus has been drafted to take into account some of the recommendations of the Steele Review of NHS Dental Services, which was published in June 2009. Recommendations from the review included developing dental contracts with clearer incentives for improving health, improving access and improving quality. As you will see in further detail below, the PDS Plus includes such provisions, so that contractors are rewarded for improving access to services and improving the quality of services, for example.
The name of the agreement may have changed, but the regulations underpinning the PDS Plus are the same that underpin PDS Agreements and that have been in force since 1 January 2006 - the National Health Service (Personal Dental Services Agreements) Regulations 2005 (“the PDS Regulations”). Though many PCTs were anticipating a regulatory change dealing with the issue of “no fault termination” following the Court of Appeal’s decision in Crouch v South Birmingham PCT in December 2008, this has not been forthcoming for PDS agreements. However, you will note that there has been a regulatory change clarifying the issue of “no fault termination” under PMS Agreements (see “Sharper Teeth” article).
PCTs will need to ensure that any PDS Plus that they issue complies with the PDS Regulations. This is not as straightforward as checking through the clauses of a PDS Agreement. The PDS Plus does not follow the same sequence of clauses as the PDS Regulations, unlike the standard PDS Agreement.
As the Dental Access Procurement will follow the restricted procedure, PCT's will need to be able to prescribe the key conditions and specification requirements in the contract to put to bidders at the ITT stage. This is because negotiations on fundamental aspects of the contract are prohibited with this procedure.
The standard PDS Plus and user guide are available on the Department of Health website. There are also separate guides to assist PCTs with issues such as insurance and premises issues in their Dental Access Procurements. The supporting guidance follows a similar format to the procurements for Equitable Access to Primary Medical Care Services.
The PDS Plus incorporates a payment mechanism that is comprised of three payments, in relation to services, access and performance. The services payment is what dental commissioners will know as the Negotiated Annual Agreement Value (or NAAV). The contractors have the right to request a GDS contract under the PDS Regulations (if they are providing mandatory services), however the PDS Plus makes it clear that only the NAAV will be transferred to the GDS contract, rather than the value of the aggregated services, access and performance payments.
The access payment encourages contractors to increase access to dental services to patients who have not visited the contractor’s dental practice in the preceding 24 months. Such “access payments” will be calculated based on the number of such “unique patients” that the contractor treats as a percentage of a budgeted headcount that the PCT will determine.
There is also a performance payment element linked to the contractor’s delivery on a number of KPIs, in a similar format to the Equitable Access APMS Contract. The standard KPIs fall under the headings of “Effective Care”, “Health Promotion” and “Patient Experience”. Remedies are included in the Agreement should the contractor fail to meet certain KPIs. For example, achieving a “C” rating twice for the same KPI in any twelve month period can result in the PCT serving a breach or remedial notice upon the contractor.
Having advised on the PDS Plus, we have noted a number of issues with the payment mechanism that are beyond what is set out in the PDS Plus user guide that require consideration by PCTs. These issues relate to the calculation of the payments, reconciliations, timing of the payments as well as the provisions relating to minimum income guarantees. Also, should your PDS Plus not commence on 1st April, the payment mechanism will require substantial amendment.
Though both GDS Contracts and PDS Agreements are not contracts that are based on patient lists, the PDS Plus includes the concept of “Patients” and “Regular Patients”, with the latter being patients that have been offered and have accepted a Dental Care Assessment. There are also some provisions that the PCT may wish to include relating to non-bookable appointments. Such walk in facilities need careful thought by the PCT in terms of how they will work, given that mandatory services are defined in the GDS Regulations, and include urgent treatment. PCTs will also need to ensure that the service specification set out in the ITT ties in with the service specification of the PDS Plus.
GDS Contracts and PDS Agreements include statutory reporting provisions in the form of mid year review provisions and the annual report. The PDS Plus goes further than this, by including extra reporting obligations on contractors. Given the current economic climate, PCTs will be keen to ensure that they can generate value from their PDS Plus, and these extra reporting obligations give further opportunities to PCTs to manage their contracts pro-actively.
There are many other issues which we would recommend that the PCT consider in detail as part of their dental access procurements, including:
- Procurement. Have all of the relevant procurement obligations been complied with? Does the PDS Plus reflect the content of the ITT?
- Premises. Who will be identifying and providing the premises, and what leases or underleases are required to be put in place? Does the PCT wish to take an interest in the property and grant a lease to the dentists? Does the PCT wish to include a conditions precedent clause whereby securing the relevant lease or underlease is a condition that must be satisfied before the contract comes into force?
- Mobilisation plan. The inclusion of a conditions precedent clause relating to the receipt of a mobilisation plan from the contractor by a certain date may be a useful tool for the PCT to ensure that the contractor is gearing up for service commencement.
- Employment. Will there be any TUPE transfers involved? How will these liabilities be covered off?
Bevan Brittan LLP are well placed to advise on the commercial, procurement, property and employment aspects of your Dental Access Procurement, from the initial stages of the procurement through to contract signature and beyond. We have advised on a number of Dental Access Procurements, as well as over 50 Equitable Access schemes and therefore understand the issues that PCTs must navigate in order to deliver robust and cost effective procurements.
Please contact a member of our team and we would be happy to discuss how we can support you through your Dental Access Procurement.