The National Health Service (Personal Dental Services Agreements) Regulations 2005

PART 5 E+W AGREEMENTS: REQUIRED TERMS

NHS contracts E+W

10.  If the contractor is to be regarded as a health service body, the agreement must state that it is an NHS contract.

Additional services E+W

11.  If the agreement includes the provision of additional services, it must contain in relation to each such service as is included in the agreement, terms that have the same effect as those specified in Schedule 1 in so far as they are relevant to that service.

Agreements: general E+W

12.—(1) An agreement must specify—

(a) the services to be provided by the contractor;

(b) the duration of the agreement;

(c) to whom such services are to be provided; and

(d) the postal address of each of the premises to be used by the contractor or any sub-contractor for the provision of such services, or, if the contractor is to provide services from a mobile surgery, that fact.

(2) The premises referred to in paragraph (1)(d) do not include any place in which a patient is residing.

Units of dental activity E+W

13.—(1)  [F1 Subject to [F2 regulations 20B and 20C],] where an agreement includes the provision of mandatory or advanced mandatory services, the agreement must specify the number of units of dental activity to be provided by the contractor—

(a) where the agreement begins on 1st April, in each financial year or, by virtue of the duration of the agreement, part financial year; or

(b) where the agreement begins on a date other than 1st April, in the remainder of the financial year in which the agreement begins, and in each financial year thereafter.

(2) [F1 Subject to [F2 regulations 20B and 20C],] an agreement must contain terms which have the effect of those specified in Part 1 of Schedule 2 in relation to the calculation of the number of units of dental activity that the contractor has provided under the agreement.

Textual Amendments

F1 Words in reg. 13(1)(2) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 31 (with Sch. 2)

F2 Words in reg. 13(1)(2) substituted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 12

Units of orthodontic activity E+W

14.—(1) Where an agreement includes the provision of orthodontic services, the agreement must specify the number of units of orthodontic activity to be provided by the contractor—

(a) where the agreement begins on 1st April, in each financial year or, by virtue of the duration of the agreement, part financial year; or

(b) where the agreement begins on a date other than 1st April, in the remainder of the financial year in which the agreement begins, and in each financial year or part financial year thereafter.

(2) Where paragraph (1) applies, the agreement must also contain terms which have the effect of those specified in Part 2 of Schedule 2 in relation to the calculation of how many units of orthodontic activity a contractor has provided under the agreement.

[F3 Units of dental activity for contractors who elect to enter into a prototype agreement E+W

14A.— (1) Where a contractor has elected to enter into a prototype agreement, the prototype agreement must specify the number of units of dental activity to be provided by the contractor—

(a) where the prototype agreement begins on 1st April, in each financial year; or

(b) where the prototype agreement begins on a date other than 1st April, in the remainder of the financial year in which the prototype agreement begins, and in each financial year thereafter.

(2) A prototype agreement must contain terms which have the effect of those specified in Schedule 2A in relation to the calculation of the number of units of dental activity to be provided by the contractor under the prototype agreement.

Textual Amendments

F3 Regs. 14A-14C inserted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 13

Capitated patient figures for contractors who elect to enter into a prototype agreement E+W

14B.   Where a contractor has elected to enter into a prototype agreement, the prototype agreement must specify the number of patients to whom the contractor is expected to have provided primary dental services (known as the capitated patient figure) by the end of each financial year.

Textual Amendments

F3 Regs. 14A-14C inserted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 13

Capitated patients E+W

14C.— (1) Where a contractor has elected to enter into a prototype agreement, on any day (“the relevant day”) a patient is a capitated patient if that patient has been provided with a banded course of treatment by the contractor (C1) within a period of three years immediately preceding that day, provided that—

(a) the banded course of treatment has not been provided by a foundation trainee;

(b) the patient has not been referred to C1 for the banded course of treatment by another primary dental services contractor; and

(c) the patient was not subsequently provided with a banded course of treatment before the relevant day by another primary dental services contractor (C2), unless the patient was referred to C2 by C1 for that banded course of treatment.

(2) For the purposes of this regulation—

(a) a banded course of treatment does not include the provision of an urgent course of treatment; and

(b) “foundation trainee” has the meaning given in Section 12 of the General Dental Services Statement of Financial Entitlements 2013 (glossary of terms).]

Textual Amendments

F3 Regs. 14A-14C inserted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 13

Under-provision of units of dental activity or units of orthodontic activity E+W

15.—(1) The agreement shall provide that [F4 the Board] shall not, pursuant to Part 9 of Schedule 3 (variation and termination of agreements), be entitled to take any action for breach of a term of the agreement giving effect to regulation 13 or 14 (including termination of the agreement) where paragraph (2) applies.

(2) Subject to paragraph (4), this paragraph applies where the contractor has failed to provide—

(a) the number of units of dental activity; or

(b) the number of units of orthodontic activity,

it is contracted to provide pursuant to a term of the agreement giving effect to regulation 13 or 14 where—

(i) that failure amounts to 4 per cent or less of the total number of units of dental activity or units of orthodontic activity that ought to have been provided; and

(ii) the contractor agrees to provide and does so provide the units it has failed to provide within such period as [F5 the Board] specifies in writing, such period to consist of not less than 60 days.

(3) Paragraphs (1) and (2) shall not prevent [F6 the Board] from taking action under Part 9 of Schedule 3 for breach of contract (including terminating the agreement) on other grounds.

(4) In the case of an agreement with a duration period of less than 12 months, the period of 60 days in paragraph (2)(ii) may not apply if [F7 the Board] considers it not appropriate or considers that another period of less than 60 days should apply.

Textual Amendments

F4 Words in reg. 15(1) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 32 (with Sch. 2)

F5 Words in reg. 15(2) substituted (1.4.2013) by virtue of The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 32 (with Sch. 2)

F6 Words in reg. 15(3) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 32 (with Sch. 2)

F7 Words in reg. 15(4) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 32 (with Sch. 2)

Domiciliary services and sedation services E+W

16.  Where an agreement includes the provision of domiciliary services or sedation services, the agreement must specify the number of courses of treatment that the contractor is—

(a) to provide; or

(b) to contribute to where provided as a referral service,

that involve the provision of domiciliary services or sedation services—

(i) where the contract begins on 1st April, in each financial year; or

(ii) where the contract begins on a date other than 1st April, in the remainder of the financial year in which the contract begins, and in each financial year thereafter for which the contract continues.

Finance E+W

17.—(1)  [F8 Subject to regulations 20B and 20C,] the agreement must contain a term which has the effect of requiring—

(a) [F9 the Board] to make payments to the contractor under the agreement promptly and in accordance with both the terms of the agreement and any other conditions relating to the payment contained in directions given by the Secretary of State under section 28E(3A) of the Act M1 (personal medical or dental services: regulations);

(b) the contractor to make payments promptly to [F9 the Board] and in accordance with both the terms of the agreement and any other conditions relating to the payment contained in directions given by the Secretary of State under section 17 (Secretary of State's directions: exercise of functions) or 28E(3A) of the Act.

(2) The obligation referred to in paragraph (1) is subject to any right the Relevant Body has to set off against an amount payable to the contractor an amount that—

(a) is owed by the contractor to [F10 the Board] under the agreement;

(b) has been paid to the contractor owing to an error or in circumstances when it was not due; or

(c) [F11 the Board] may withhold from the contractor in accordance with the terms of the agreement or any other applicable provisions contained in directions given by the Secretary of State under section 28E(3A).

(3) [F12 Subject to regulations 20B and 20C,] the agreement must contain a term to the effect that where, pursuant to directions under section 17 or 28E(3A) of the Act, [F13 the Board] is required to make a payment to a contractor under an agreement but subject to conditions, those conditions are to be a term of the agreement.

Textual Amendments

F8 Words in reg. 17(1) substituted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 14

F9 Words in reg. 17(1)(a)(b) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 33(b) (with Sch. 2)

F10 Words in reg. 17(2)(a) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 33(b) (with Sch. 2)

F11 Words in reg. 17(2)(c) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 33(b) (with Sch. 2)

F12 Words in reg. 17(3) substituted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 14

F13 Words in reg. 17(3) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 33(c) (with Sch. 2)

Marginal Citations

M1 Section 17 of the Act was substituted by the Health Act 1999 (c. 8), section 12(1), and amended by the 2001 Act, section 67(1) and Schedule 5, paragraph 5(1) and (3) and the 2002 Act, section 1(3) and Schedule 1, paragraph 7. Section 28E(3A) was inserted by section 177(8) of the 2003 Act.

Fees, charges and financial interests of the contractor E+W

18.—(1) The agreement must contain terms relating to fees, charges and financial interests which have the same effect as those set out in paragraphs (2) to (4).

(2) The contractor shall not, either itself or through any other person, demand or accept a fee or other remuneration for its own or another's benefit from—

(a) any patient of its for the provision of any treatment under the agreement, except as otherwise provided in the NHS Charges Regulations; or

(b) any person who has requested services under the agreement for himself or a family member, as a prerequisite to providing services under the agreement to that person or his family member.

(3) The agreement must contain a term that—

(a) only permits the contractor to collect from any patient of its any charge that that patient is required to pay by virtue of the NHS Charges Regulations, in accordance with the requirements of those Regulations; and

(b) provides for obligations imposed on the contractor by virtue of the NHS Charges Regulations to be terms of the agreement.

(4) The agreement must contain a term that requires the contractor in making a decision—

(a) as to what services to recommend or provide to a patient who has sought services under the agreement; or

(b) to refer a patient for other services by another contractor, hospital or other relevant service provider under Part 1 of the Act,

to do so without regard to its own financial interests.

(5) The term “patient” in paragraph (3) shall have the same meaning as in regulation 2(1) of the NHS Charges Regulations.

Arrangements on termination E+W

19.  An agreement shall make suitable provision for arrangements on termination of an agreement including the consequences (whether financial or otherwise) of the agreement ending.

Other contractual terms E+W

20.—(1)  [F14 Subject to regulation 20B,] an agreement must, unless it is of a type or nature to which a particular provision does not apply, contain other terms which have the same effect as those specified in Schedule 3 except paragraphs 55(4) to 55(13) and 56 and Schedule 5.

(2) The paragraphs specified in paragraph (1) shall have effect in relation to the matters set out in those paragraphs.

(3) Where an agreement does not commence on 1st April in any financial year or the duration of an agreement is less than 12 months, there must be a contractual term—

(a) specifying the date and periods for the purposes of a mid-year review of the services provided; and

(b) which, other than as to the date and periods, have similar effect as those specified in paragraphs 58(3) to (8) and 59 of Schedule 3 in respect of the requirement and procedure for carrying out mid-year reviews.

Textual Amendments

F14 Words in reg. 20(1) substituted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 34 (with Sch. 2)

Variation of contractual terms in respect of election to enter into a Capitation and Quality Scheme Agreement E+W

F15 20A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 Reg. 20A omitted (1.4.2013) by virtue of The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 35 (with Sch. 2)

[F16 Variation of contractual terms in respect of election to enter into a Capitation and Quality Scheme 2 Agreement E+W

20B.— (1) This regulation applies where the contractor and the Board elect to enter into a Capitation and Quality Scheme 2 Agreement.

(2) Where this Regulation applies, the terms of the agreement which have the same effect as the provisions specified in paragraph (3) must be varied in accordance with paragraphs (4) and (5) with effect from the start of the day on which the Capitation and Quality Scheme 2 Agreement commences and for the period ending at the end of the day which is the date of the termination of the Capitation and Quality Scheme 2 Agreement, which must be no later than [F17 31st March 2016].

(3) The provisions specified in this paragraph are—

(a) regulation 13 (units of dental activity);

(b) regulation 17 (finance); and

(c) in Schedule 3—

(i) paragraph 33(2) (patient records), which is a contractor’s discretion to keep patient records in electronic form,

(ii) paragraph 58 (mid-year reviews), in so far as it relates to units of dental activity,

(iii) paragraph 59 (action the Board can take following a mid-year review), in so far as it relates to units of dental activity, and

(iv) paragraph 61(1)(a) and (3)(a) (variation of an agreement: activity under the agreement), which relate to units of dental activity.

(4) The agreement must include terms that have the effect of temporarily releasing the contractor and the Board from all of the obligations, conditions, payments, rights and liabilities relating to those terms (and only those terms) which have the same effect as the provisions specified in paragraph (3), including any right to enforce those terms.

(5) The agreement must also include terms to have the effect of providing that immediately after the date of the termination of the Capitation and Quality Scheme 2 Agreement—

(a) the terms of the agreement that subsisted between the parties immediately before—

(i) in the case of a contractor who held a Capitation and Quality Scheme Agreement, the Capitation and Quality Scheme Agreement commenced, or

(ii) the Capitation and Quality Scheme 2 Agreement commenced,

and from which the parties were temporarily released in accordance with paragraph (4) must apply from the day after the date of termination; and all obligations, conditions, payments, rights and liabilities relating to those terms are to be enforceable from that day.]

Textual Amendments

F16 Reg. 20B inserted (1.4.2013) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 (S.I. 2013/364), regs. 1(1), 36 (with Sch. 2)

F17 Words in reg. 20B(2) substituted (1.4.2015) by The National Health Service (Primary Dental Services and General Ophthalmic Services) (Miscellaneous Amendments and Transitional Provision) Regulations 2015 (S.I. 2015/416), regs. 1(2), 7

[F18 Variation of contractual terms in respect of election to enter into a prototype agreement E+W

20C.— (1) This regulation applies where the contractor and the Board elect to enter into a prototype agreement.

(2) Where this regulation applies, the terms of the agreement which have the same effect as the provisions specified in paragraph (3) must be varied in accordance with paragraphs (4) and (5) with effect from the day on which the prototype agreement commences and for the period ending at the end of the day which is the date of termination of the prototype agreement, which must be no later than 31st March 2018.

(3) The provisions specified in this paragraph are—

(a) regulation 13 (units of dental activity);

(b) regulation 15 (under provision of units of dental activity or units of orthodontic activity), in relation to units of dental activity only;

(c) regulation 17 (finance);

(d) Part 1 of Schedule 2 (units of dental activity); and

(e) in Schedule 3 (other contractual terms)—

(i) paragraph 33(2) (patient records), which is a contractor’s discretion to keep patient records in electronic form,

(ii) paragraph 58 (mid-year reviews), and

(iii) paragraph 61(1)(a) and (3)(a) (variation of an agreement: activity under the agreement), which relate to units of dental activity.

(4) The agreement must include terms that have the effect of temporarily releasing the contractor and the Board from all of the obligations, conditions, payments, rights and liabilities relating to those terms (and only those terms) which have the same effect as the provisions specified in paragraph (3), including any right to enforce those terms.

(5) The agreement must also include terms that have the effect of providing that, immediately after the date of the termination of the prototype agreement, the terms of the agreement that subsisted between the parties immediately before—

(a) in the case of a contractor who held both a Capitation and Quality Scheme Agreement and a Capitation and Quality Scheme 2 Agreement, the Capitation and Quality Scheme Agreement commenced;

(b) in the case of a contractor who held a Capitation and Quality Scheme 2 Agreement but not a Capitation and Quality Scheme Agreement, the Capitation and Quality Scheme 2 Agreement commenced; or

(c) if neither sub-paragraph (a) nor (b) applies, the prototype agreement commenced,

and from which the parties were temporarily released in accordance with paragraph (4), must apply from the day after the date of termination, and all obligations, conditions, payments, rights and liabilities relating to those terms are to be enforceable from that day.]

Textual Amendments

F18 Reg. 20C inserted (1.11.2015) by The National Health Service (Primary Dental Services) (Miscellaneous Amendments) (No. 2) Regulations 2015 (S.I. 2015/1728), regs. 1(1), 15