AOP response to the Department of Health and Social Care (DHSC) Provider selection regime: supplementary consultation on the details of proposals for regulations
Our response to the consultation, April 2022
Our response
Q1. To what extent do you agree or disagree that the inclusion of a list of CPV codes in the regulations for the Provider Selection Regime would help to clarify the scope of the regime and promote understanding of when the regime applies?
AOP response: Disagree
While we understand the intent behind the use of CPV codes, we don’t think they are a good fit in this instance and we don’t believe they add additional value. In fact, we are concerned that their addition may inadvertently misclassify, or confuse the procurement process and remove existing services as they would not neatly fit into one of these codes.
IF CPV codes are to be used it would be helpful if accompanying guidance made it clear the range of providers that may be suitable to provide the service. For example, an explanatory note making it clear that ophthalmology service may in some instances be delivered in a primary care setting as the service is within the scope of practice of optometrists.
Q2. To what extent do you agree or disagree that the list of codes presented in the consultation document accurately represent our aims for defining the scope of healthcare services?
AOP response: Disagree
Q3. Are there CPV codes that you think should be included from the list?
Unfortunately, CPV codes do not capture the full extent of how healthcare is provided in the UK. Given the variance in the way optometry is defined and delivered across Europe and indeed worldwide, it is understandable that these codes cannot capture the full extent of UK healthcare services. However, if these codes are enshrined in regulation, there is a risk that existing services may suffer as a result. This could negatively impact access to care for patients adding additional pressure to waiting lists and availability.
Q4. Are there CPV codes that you think should be excluded from the list?
We do not believe that CPV codes are appropriate for the reasons set out above.
Q5. What other types of service (apart from social care) do you think may be arranged in a contract for which the main subject matter is healthcare, which we should be aware of?
N/A
Q6. To what extent do you agree or disagree that the list of codes presented under the heading 'Proposals: Mixed Procurement' of the consultation document accurately represent our aims for defining the scope of social care services which may be arranged with healthcare services?
AOP response: Disagree
Q7. To what extent do you agree or disagree that a threshold for considerable change should require both a change of set amount in contract value and a percentage change in contract value?
AOP response: Neither agree nor disagree
In our view it is important to ensure that contracts are not needlessly disrupted without good cause.
It may not be in the interest of patients to stick rigidly to a criteria if the service is delivering good quality patient care.
As such it is important that there is clear supplementary guidance on when this threshold would be considered as being crossed to avoid unintended consequences and to remove ambiguity, or variance in decision making between regions.
Q8. To what extent do you agree or disagree that a change in contract value of over £500,000 is an appropriate threshold when considering what constitutes a considerable change?
AOP response: Neither agree or disagree
In our view £500,000 is a good starting point as to when to consider a change significant, it does not capture all of the nuances such as the length, or maturity of the contract at commencement. It would be unfortunate if a service that was well used and achieving its aims was tipped into a new procurement exercise by virtue of its own success. In our view supplementary guidance could ensure that there aren’t regional variations and interpretations, this would help to mitigate this risk.
Q9. To what extent do you agree or disagree that a change in contract value of over 25% is an appropriate threshold when considering what constitutes a considerable change?
AOP response: Neither agree or disagree
As above it is important to consider other factors and not just a simple threshold. Therefore while 25% seems a sensible starting point, it is important that other factors are considered. In our view, supplementary guidance could ensure that there aren’t regional variations.
Q10. Do you have any views on how this formulation may be improved?
AOP response: Yes
It is our view that simple thresholds alone could lead to unintended consequences and that by providing supplementary guidance these may be better avoided. We would be happy to help review or develop this supplementary guidance. This guidance should place the impact on patients at the centre of the process.
Q11. To what extent do you agree or disagree that the list of variations should not warrant the reapplication of the Provider Selection Regime (such as selecting a provider through Decision-Making Circumstance 2 or Decision-Making Circumstance 3)?
AOP response: Neither agree or disagree
We are broadly supportive, and agree that variations should only be used when it is necessary to do so. As we have said above, the maturity of a service could impact upon a service and its rate of growth, change, or uptake. In our view supplementary guidance could address gaps and provide additional detail to ensure good quality and consistent decision making.
Q12. To what extent do you agree or disagree that a change in contract value of over £500,000 is an appropriate threshold when considering what constitutes a considerable variation for this purpose?
AOP response: Neither agree or disagree
In our view £500,000 is a good starting point as to when to consider a change significant, it does not capture all of the nuances such as the length, or maturity of the contract at commencement. It would be unfortunate if a service that was well used and achieving its aims was tipped into a new procurement exercise by virtue of its own success. In our view supplementary guidance could ensure that there aren’t regional variations and interpretations, this would help to mitigate this risk.
Q13. To what extent do you agree or disagree that a change in contract value of over 25% is an appropriate threshold when considering what constitutes a considerable variation?
AOP response: Neither agree or disagree
As above it is important to consider other factors and not just a simple threshold. Therefore while 25% seems a sensible starting point, it is important that other factors are considered. In our view, supplementary guidance could ensure that there aren’t regional variations.
Q14. If establishing lists of providers for non-legal right to choice services for patients to exercise choice, do you think that decision-making bodies would intend to limit these lists to a set number of potential providers?
AOP response: Not sure
We are concerned that there may be a perception that managing a large list of providers and the associated administrative burden that imposes, may lead to artificial limits being places on the number of providers. In our view a wide choice of providers is more likely to lead to innovation and to keep costs of the service at a minimum due to competition in the market.
Q15. If establishing or altering lists of providers for non-legal right to choice services with a limited number of providers, do you agree or disagree that decision-making bodies should select providers using decision-making circumstances 2 or 3 of the Provider Selection Regime?
AOP response: Agree
If a limited amount of providers is to be used then circumstances 2 & 3 seem appropriate.
Q16. To what extent do you agree or disagree that the notice which states the decision-making bodies intention to award a contract to a provider should also include:
a) A statement explaining the balancing of key criteria which they used to make a decision?
AOP response: Agree
b) A statement explaining the decision-making body's rationale for choosing the successful provider?
AOP response: Strongly agree
It is essential that decisions regarding how to spend public money, are clear and open to scrutiny. While we welcome the aims to reduce bureaucracy, this shouldn’t be at the cost of accountability.
Q17. Is there other information that you think would be helpful to publish in this notice?
Yes
As we have said above, it is important that how public money is spent is open to scrutiny. The exact details of how to achieve this should be provided in supplementary guidance to ensure consistency between regions.
Q18. We propose decision-makers must publish a summary of their application of the Provider Selection Regime annually (for example, via the decision-making body’s annual reports or annual governance statement). This summary must include:
- The number of contracts re-awarded under decision-making circumstances 1A, 1B and 1C in that year
- The number of contracts let through decision-making circumstances 2 and 3
- The total number of providers contracted with; number of new providers contracted with; number of providers who no longer hold any contract
- The numbers of representations received and the outcome of those representations
Q19. To what extent do you agree or disagree with our proposals around annual summaries?
AOP response: Strongly agree
As we have previously said it is important to ensure how public money is spent is open to scrutiny and to reduce the risk of regional variation.
Q20. Is there any additional information you would suggest for inclusion in these summaries? Please provide specific examples where possible
- The number of contracts awarded in each circumstance (1A, 1B, 1C, 2, 3) each year
- The value of each contract
- Contract length
- A standard form of reporting for each body to allow regional comparison
Q21. How many people in your organisation do you anticipate will need to be aware of the new Provider Selection Regime?
AOP response: More than 50
Q22. What function(s) do these people have? For example, procurement specialists or commissioners or senior leaders
Our response considers people in our organisation and our membership. These include clinicians, provider organisations and other subject matter experts.
Q23. Where possible, we would be grateful if you could state the function and then the number of people who have that function.
AOP response: N/A
Q24. To what extent do you agree or disagree with this statement: My organisation will be able to successfully transition from the current arrangements to the new Provider Selection Regime?
AOP response: Agree
As a membership body we will transition to the new Provider Selection Regime and support members and the wider sector (including patient groups) understand and transition to the new way of working.
Q25. If applicable, please outline any main challenges you anticipate for implementing the Provider Selection Regime in your organisation
AOP response: N/A
Q26. NHS England are currently planning to provide certain tools to support the immediate implementation of the PSR. How useful would each of the following resources be to your organisation?
Webinars (including online questions and answers)
AOP response: A fair amount
Template documents for decision-making bodies to use when making and recording decisions under the PSR
AOP response: A fair amount
Process flow diagrams
AOP response: A fair amount
Q27. If you think there any other tools or forms of support that would help your organisation implement the PSR, please provide details.
- Sharing of best practice between regions, this will hopefully reduce unnecessary variation
- While local nuances in service delivery will be essential, many of our members operate across regional boundaries and unnecessary variation increases costs and limits access, in our view a clear steer to avoid variation without good cause would be invaluable
Q27. After the initial implementation phase of the PSR, if you think there are any other ways that DHSC or NHSE can support your organisation with the successful operation of the PSR in the medium or long term future, please provide details.
We would welcome ongoing regular engagement and a forum where we can raise issues and concerns so that the PSR can continue to evolve.
Costs and savings: Short-term or familiarisation costs
Noting that DHSC and NHS England will support the system to help prepare for change, DHSC welcomes views on what other familiarisation costs may be associated with establishing the Provider Selection Regime.
Q1. Do you agree or disagree that your organisation would incur short-term costs from the familiarisation of and transitioning to the Provider Selection Regime?
AOP response: Agree, there would be costs
Q2. How do you anticipate these short-term costs would arise? If possible, please provide a breakdown and estimate of these costs in pounds.
As a membership body, we will need to provide ongoing guidance and support for members so that they can understand and navigate the PSR.
Q3. To what extent could these costs be accommodated in your organisation's budget?
AOP response: N/A
Q4. Do you anticipate that your organisation will incur any increased operational or running costs when arranging services under the Provider Selection Regime compared with the existing operational costs when arranging services under the current procurement rules?
AOP response: No
Q5. Do you anticipate that your organisation will realise any operational savings when arranging services under the Provider Selection Regime compared with arranging services under the current procurement rules?
AOP response: No
Please explain your answer and provide specific examples where possible.
AOP response: NA