The ‘right to return’ – where GPs suspend their primary care contracts to participate in an Accountable Care Organisation, what are their rights if they want to go back to their practice?
NHS England consulted in the autumn on changes to regulations to support the introduction of Accountable Care Organisations (ACOs). This included consultation on the ‘right to return’, a mechanism designed to provide assurance to GPs considering integrating their services with an ACO.
Under NHS England’s ‘fully integrated’ model commissioners are to procure all services (including core general practice) under a new contract: the Accountable Care Organisation Contract (ACO Contract). A single organisation would be responsible for the provision of community and primary medical services and, in some cases, acute services.
As the ACO would be responsible for the provision of primary care, changes are being proposed to the GMS Contract and the PMS Agreement to allow practitioners to suspend service delivery under their core contracts so they can participate fully in the ACO. Patients will by default transfer to the registered list of the ACO but can choose to register with another practice outside the ACO.
Whilst the ACO Contract is intended to be for 10 years, there is provision for a GP Practice to seek withdrawal from the ACO at regular intervals by reactivating their GMS Contract or PMS Agreement.
The proposed changes pose many questions to which the answers are as yet unclear:
- First, the guidance assumes that withdrawal from the arrangements by GPs and reactivation of core primary care contracts will be possible provided the GP practice is still eligible to enter into a GMS Contract or a PMS Agreement and the commissioners’ right to terminate has not arisen. However, questions remain about how to effect reactivation:
- What if there are changes to the GP partnership due to death or retirement or if there is a dispute.
- What happens if the partnership was dissolved when it joined the ACO (dissolution of the partnership being a ground which gives rise to the termination of a GMS Contract/PMS Agreement)
- How do you unwind from the integrated organisation?
- How do you get back staff who have TUPE’d across to the integrated organisation?
- What happens to the integrated assets, contracts, premises?
- What services will you end up being able to provide?
- How will the flow of funds from the ACO be re-directed to your practice?
- Second, where patients will be registered depends on the strict notice provisions set out in the draft Regulations:
- By giving 12 months’ notice on the 2nd anniversary of the suspension of the contract the patients will revert back to the GP practice once the core contract is reactivated.
- By giving notice at any time after the 2nd anniversary of the suspension of the core contract, although the core contract will be reactivated, the patients will stay with the ACO.
It will be important for GPs to get the timings of the notices right to ensure they do not miss triggering the right to take their patients back.
Neha Shah, Associate at Hempsons, comments: “For a GP practice to become a party to the fully integrated model requires the acceptance of the following risk: the core contract may not be reactivated and, if it is, the patients may remain by default registered with the ACO. These risks will need to be balanced with the potential benefits of a model which fully integrates primary care with other services. To guarantee return of their patients, GP practices will need to trigger the right to return on the 2nd anniversary of the integration. In this short time one would question the benefits that could be achieved when considering the likely costs of integration..”