This is a question that clinical commissioners need to think about very hard and very soon. From next April when all foundation trusts (FTs) are expected to become subject to the new Monitor provider licence regime, commissioners will have to take decisions about which services they want to give special protection.
The provider licence will be Monitor's main way of regulating providers of NHS services. It is due to come into force for FTs in April 2013, with other types of providers following in 2014. This means that FTs will have to conform to requirements ranging from providing information to Monitor about the cost of services to help with price setting and agreeing not to practise anti-competitive behaviour.
One of the main features of the licence is the continuity of services framework, which should ensure that if a provider fails financially, certain pre-identified essential services will continue until longer-term arrangements can be made for their provision. These services will be known as ‘commissioner-requested services' (CRSs), and clinical commissioners will have to agree with provider organisations which services should receive CRS status.
Although designating a service as a CRS might initially seem attractive, these decisions will have wide-ranging consequences for NHS providers and potentially for the stability and sustainability of local services.
Once a service has CRS status, the organisation providing it has to continue offering the service unless it can obtain agreement from Monitor and the commissioners to stop; it cannot dispose of relevant assets used to provide the service without Monitor's consent; it must pay into a risk pool that will fund services in the event of financial failure; it must acquire a Monitor risk rating; and it must agree to allow Monitor to nominate people to enter its premises, in the event that it falls into financial distress.
Risk to innovation and quality improvement
These are potentially onerous conditions, so no FT would welcome an inappropriately large number of its services being designated as CRSs. If too many were covered, this could ultimately restrict the FT’s ability to make decisions about how it runs its organisation, and even affect its long term viability.
The Foundation Trust Network (FTN), which is the trade association for NHS FTs and NHS trusts on the way to becoming FTs, is concerned that having an inappropriately large number of services with extra restrictions could make innovation and quality improvement very difficult for providers. The FTN believes CRS status should only be used in situations where, should the provider in question fail, it would be genuinely difficult to find another organisation to step in as an interim measure at short notice. Obviously this will vary from place to place, and decisions about awarding CRS status will differ between urban areas with many hospitals and rural areas, where neighbouring hospitals are few and far between.
The immediate difficulty faced by clinical commissioners is that as the proposals stand, on day one of the new licence, all services provided by FTs that are currently known as ‘mandatory services’ will automatically become CRSs. This means that for many FTs, the majority of their services will be subject to the continuity of services framework, with all its restrictions. So, commissioners will need to review the CRSs that are in place at the outset and remove inappropriate designations. For instance, we know that some services that are currently listed as options for the any qualified provider programme are also on some providers’ mandatory services lists. If multiple providers exist in an area, then these services should not be classified as CRSs.
Monitor is consulting on the licence regime before issuing guidance to commissioners on how to identify a genuine CRS. We all want to see thriving providers working alongside effective commissioners. So given the short time before April 2013, when the licence is likely to come into force, the FTN is encouraging commissioners and FTs to discuss CRSs sooner rather than later to give the new arrangements the best chance of success.
- The Foundation Trust Network is the trade association for NHS foundation trusts (FTs) and NHS trusts on the way to becoming FTs.