The updated Who Pays? guidance has effect from 1 September 2020, reflecting various updates in law and guidance since 2013. The guidance sets out a framework for determining which NHS body is responsible for paying a healthcare service provider for an individual’s care or treatment. All CCGs must have regard to the guidance.

Key principles

The general rule that the responsible commissioning CCG is determined by where the patient’s GP practice is located (or if the patient isn’t registered with any GP, where they are usually resident) remains the same.

The core principle that no necessary assessment, care or treatment should be delayed or refused because of uncertainty as to the identity of the NHS commissioner responsible for funding a person’s healthcare provisions is also retained.

The guidance states that it should be used as the basis to resolve new or existing disagreements in historic / ongoing cases, but not to revisit funding arrangements where no disagreement currently exists. In other words, the new rules contained in the guidance are not retrospective.  

Key changes

Hospital stays (paragraph 13)

For admissions on or after 1 September 2020, if a patient changes address or their GP during an in-patient stay, the relevant CCG at the time of admission to hospital will pay for the entirety of the stay. This does not apply to patients detained under the Mental Health Act 1983 or funded by “continuing care” (not limited to NHS CHC funding).

Discharge from hospital and out-of-area placements, CHC and continuing care (paragraph 14)

There is detailed guidance on arrangements for CHC and other continuing care packages. The originating CCG will largely retain responsibility for the care package, even if the patient is placed in another CCG area.

Discharge to assess

From 1 September 2020, the “discharge to assess” process is to be used with new packages of care of up to six weeks being funded by the NHS. For out-of-area placements, the ‘placing CCG’ will pay. If a longer term placement ensues, the same CCG will retain responsibility for its funding (whether out of area or not).

Change of address or GP

In cases other than ‘discharge to assess’, responsibility for paying for NHS CHC in a care home / independent hospital will be ‘applied at the point at which a referral for NHS CHC assessment for the patient was first received by any CCG’. This applies irrespective of whether there is a change in GP registration during the assessment process.

For those patients who are neither existing (defined as already in receipt of CHC prior to 19 March 2020), nor ‘new’ (CHC to be provided on or after 1 September 2020), transitional arrangements will apply (paras. 14.33 – 14.40).

MHA detention and s.117 aftercare

The guidance contains a major clarification in this area. Where NHS England is not responsible for the commissioning of such services, the patient’s GP registration (or in default usual residence) at the moment of initial detention under the MHA determines responsibility for payment for detention and after-care. In other words, if a patient is registered with a GP in CCG area A, is detained in area B, and then receives after-care in area C, CCG A will retain commissioning responsibility for mental health services throughout. This will continue until the patient is finally discharged from s.117 aftercare. The ‘place of safety’ provisions under s.136 MHA are not considered to be a period of detention for these purposes.  Transitional arrangements apply (18.8– 18.10).

Dispute resolution (appendix 1)

Participation and co-operation in the new NHS England / Improvement managed process for dispute resolution is mandatory.  Pending resolution of a dispute, CCGs must share costs equally, ‘without prejudice’ to the outcome.

Five tips to take in connection with new guidance

CCGs should:

• ensure that they are familiar with both the general rules for determining their commissioning and payment responsibilities and the exceptions. Section 5 of the guidance (services commissioned by NHS England) is a useful resource.
• review cases caught by the transitional arrangements as soon as possible to ensure responsibilities are understood.
• consider whether historic / ongoing disagreements should be resolved using the new guidance.
• familiarise themselves with the new dispute resolution process.
• take further advice on any unresolved disputes - whether new or historic.

How Capsticks can help

Capsticks provides expert, patient-centred advice on determining commissioning responsibility and dispute resolution between multiple CCGs, and in disagreements with local authorities, including in relation to high-cost and complex care arrangements, as well as the interaction with the Mental Health Act and Court of Protection proceedings. We also act for providers that are caught in the middle of commissioning disputes, occasionally unpaid for the care they are providing to service users. For advice on how the guidance applies to your organisation, please contact Francis Lyons, Tracey Lucas or Adam Hartrick.