The National Health Service (Primary Ophthalmic Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013

PART 1 General

Citation, commencement and interpretation

1.—(1) These regulations may be cited as the National Health Service (Primary Ophthalmic Services) (Miscellaneous Amendments and Transitional Provisions) Regulations 2013 and come into force on 1st April 2013, except for regulation 23(2)(d) and (e) which comes into force on 29th April 2013.

(2) In these Regulations—

(a) “the 2006 Act” means the National Health Service Act 2006;

(b) “the 2012 Act” means the Health and Social Care Act 2012(1);

(c) “the appointed day” means 1st April 2013;

(d) “the Board” means the National Health Service Commissioning Board(2);

(e) “the GOS Regulations” mean the General Ophthalmic Services Contracts Regulations 2008(3); and

(f) “the POS Regulations” mean the Primary Ophthalmic Services Regulations 2008(4).

PART 2 Amendments to the GOS Regulations

Amendments to the GOS Regulations

2.  The GOS Regulations are amended in accordance with this Part.

Consequential amendments to the GOS Regulations

3.  Schedule 1 (which contains amendments consequential on the establishment and abolition by the 2012 Act of various bodies and on other changes made by that Act) has effect.

Miscellaneous amendments to the GOS Regulations

4.—(1) In regulation 2 (interpretation)—

(a) for the definition of “Charges Regulations”, substitute ““Charges Regulations” means regulations made under section 179 or 180 of the Act;”; and

(b) in the definition of “mandatory services”, after “a person who falls within regulation 3(1)” insert “of the POS Regulations”.

(2) In regulation 13 (testing of sight) omit paragraph (4).

(3) In Schedule 1 (other contractual terms), omit paragraphs 22 (complaints procedure), 23 (making of complaints), 24 (period for making complaints) and 25 (further requirements for complaints procedures).

(4) In Schedule 3 (applications for a contract), for paragraph 3, substitute “The sex and date of birth of the applicant and, except in relation to a person falling within paragraph 2(c)(ii), their private address.”

PART 3 Transitional provisions in respect of GOS contracts

Application and interpretation of this Part

5.—(1) This Part applies to a GOS contract which was entered into before the appointed day and the parties to the contract on or after the appointed day are the Contractor and the Board as a consequence of a property transfer scheme made under section 300 of the 2012 Act.

(2) In this Part—

“Contractor” means a party to a GOS contract other than—

(a)

in relation to a period before the appointed day, a Primary Care Trust; or

(b)

in relation to a period on or after the appointed day, the Board;

“GOS contract” means a contract entered into in accordance with section 117 of the 2006 Act;

“Primary Care Trust” means a Primary Care Trust which was established and which subsisted immediately before the coming into force of section 34 (abolition of Primary Care Trusts) of the 2012 Act; and

“Strategic Health Authority” means a Strategic Health Authority which was established and which subsisted immediately before the coming into force of section 33 (abolition of Strategic Health Authorities) of the 2012 Act.

General transitional provisions in relation to the terms of a GOS contract

6.—(1) The Contractor and the Board must, as soon as is reasonably practicable on or after the appointed day, enter into discussions with each other with a view to agreeing variations to the GOS contract in order to ensure that the GOS contract complies with the GOS Regulations on or after the appointed day.

(2) Where the terms of a GOS contract have not been varied so as to include the terms which have the same effect as those terms specified in these Regulations, the GOS contract is deemed to have been so varied only to the extent that the terms are to have the same effect as those terms specified in these Regulations that have effect on or after the appointed day.

(3) The Contractor and the Board may not agree any variation to the GOS contract that is contrary to the GOS Regulations on or after the appointed day.

Continuing validity of forms

7.  A form supplied by a Primary Care Trust continues to be a valid form in relation to the Board until it is cancelled or withdrawn by the Board.

Notification of reasons by a Primary Care Trust in respect of entering into contracts

8.  Where a Primary Care Trust has given notification to a person under regulation 5 (reasons) of the GOS Regulations before the appointed day, the notification and the written views contained in that notification shall be treated, on or after that day, as notification by the Board and the written views of the Board.

Appeals relating to eligibility to enter into a contract

9.—(1) A person who has been served notice pursuant to regulation 5 of the GOS Regulations before the appointed day may, on or after that day, appeal to the First-tier Tribunal against the decision of the Primary Care Trust and that appeal must be treated as an appeal against a decision of the Board.

(2) Where a Primary Care Trust has given notice to a person pursuant to regulation 5 of the GOS Regulations, the Board, if it considers that the person should be disqualified from entering into a contract may on or after the appointed day, apply for a contract disqualification order in relation to that person, pursuant to regulation 6(2) of the GOS Regulations.

Finance

10.  Any right that a Primary Care Trust had to set off an amount against any amount payable to the Contractor under the term that gives effect to regulation 15 (finance) of the GOS Regulations immediately before the appointed day, must be treated as a right of the Board under the term that gives effect to that regulation on or after the appointed day.

Claim by the Contractor for fees

11.  Where a Contractor provided mandatory services or additional services before the appointed day but made no claim to a Primary Care Trust in respect of fees for such services, a claim may be made to the Board on or after that day, provided it is made within the period allowed by regulation 16(5) of the GOS Regulations.

Requests for information

12.  Where a Primary Care Trust has made a request for information, or access to information, under the terms of a GOS contract having the same effect as paragraph 14 of Schedule 1 to the GOS Regulations, the request is to be deemed as made by the Board.

Notifications and notice provisions

13.  Where under Part 4 of Schedule 1 to the GOS Regulations, or under paragraph 6 of Schedule 2 to the GOS Regulations, notice has been given by the Contractor to the Primary Care Trust, or notice has been given by the Primary Care Trust to the Contractor, that notice is to be deemed as given by the Contractor to the Board, or given by the Board to the Contractor, as the case may be.

Authorisation

14.  Where a Primary Care Trust has authorised a person in writing for the purposes of—

(a) paragraph 14 (provision of and access to information) of Schedule 1 to the GOS Regulations;

(b) paragraph 19 (entry and inspection) of Schedule 1 to the GOS Regulations; or

(c) paragraph 5 (facilities and equipment) of Schedule 2 to the GOS Regulations,

that authorisation is to be deemed as given by the Board.

Leaflets

15.—(1) This regulation applies where a Contractor has compiled a patient information leaflet which complies with the requirements of paragraph 3 (provision of information) of Schedule 2 to the GOS Regulations immediately before the appointed day.

(2) Notwithstanding the requirements in paragraph 3 of Schedule 2 to the GOS Regulations as in force on or after the appointed day, the Contractor must review its patient information leaflet and make any amendments necessary so as to include the information specified in Schedule 4 (patient information leaflet) to the GOS Regulations not later than 1st July 2013.

Complaints

16.—(1) This regulation applies where an investigation of a complaint under the procedure referred to in Part 4A or Part 5 of Schedule 1 to the GOS Regulations is not completed before the appointed day.

(2) Where a complaint of the kind referred to in paragraph (1) fell to be dealt with under Part 4A, the Contractor must continue to deal with the complaint in accordance with the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009(5) as if any reference to a Primary Care Trust in a document or form relating to the complaint were a reference to the Board.

(3) Where a complaint of the kind referred to in paragraph (1) fell to be dealt with under Part 5, the Contractor must deal with the complaint, as far as it is able, in accordance with the complaints procedure which the Contractor operated under that Part and may, if it is unable to comply with that procedure as a consequence of the length of time it has taken to deal with the complaint, vary the procedure only to the extent that is necessary in order to dispose of the matter in a just manner.

Co-operation with investigations

17.  The Contractor must continue to co-operate with an investigation of a complaint which is ongoing immediately before the appointed day in accordance with terms of the GOS contract that give effect to paragraph 26 of Schedule 1 to the GOS Regulations as in force on or after the appointed day as if any act or omission by, or reference to, a Primary Care Trust or Strategic Health Authority were an act or omission by, or reference to, the Board.

Disputes

18.—(1) Any dispute arising out of or in connection with a GOS contract in respect of a Contractor and a Primary Care Trust that is ongoing immediately before the appointed day is deemed to be a dispute in respect of that Contractor and the Board.

(2) The terms of the GOS contract which have the same effect as the provisions in Part 6 of Schedule 1 to the GOS Regulations as in force immediately before the appointed day continue to apply to the dispute as if the references to—

(a) “Primary Care Trust” were to the Board, and

(b) “the parties” mean the Contractor and the Board.

Variation and termination of GOS contracts

19.—(1) This regulation applies where a Primary Care Trust or a Contractor has taken any steps in accordance with or in connection with a matter referred to in any of the provisions in Part 7 of Schedule 1 to the GOS Regulations before the appointed day and, had it not been for the coming into force of section 34 (abolition of Primary Care Trusts) of the 2012 Act, that matter would continue to fall to the Primary Care Trust to be dealt with in accordance with Part 7.

(2) Any action taken or omission by a Primary Care Trust in accordance with or in connection with any of the provisions in Part 7 of Schedule 1 to the GOS Regulations is to be deemed to be action taken or omitted by the Board for the purposes of the continuity of the application of those provisions that have effect on or after the appointed day.

(3) Where an agreement has been reached between a Contractor and a Primary Care Trust in accordance with or in connection with the provisions in Part 7 of Schedule 1 to the GOS Regulations before the appointed day, that agreement is to be deemed as an agreement made by that Contractor and the Board.

(4) Where, under Part 7 of Schedule 1 to the GOS Regulations, notice has been given by the Contractor to the Primary Care Trust or notice has been given by the Primary Care Trust to the Contractor, that notice is to be deemed to have been given by the Contractor to the Board, or as the case may be, notice given by the Board to the Contractor.

(5) Notwithstanding anything in this regulation, the Board may, if it thinks it necessary or desirable in order to dispose of a matter justly, review a decision or action taken that it is deemed to have made or taken as a consequence of this regulation.

Supplementary transitional provisions

20.—(1) Subject to the preceding regulations in this Part, any act or omission by, or in relation to, a Primary Care Trust before the appointed day in respect of—

(a) the exercise of any functions of the Primary Care Trust under Part 6 of the 2006 Act; or

(b) any rights or liabilities of the Primary Care Trust transferred as a consequence of a property transfer scheme made under section 300 of the 2012 Act,

in relation to a GOS contract, is deemed to have been an act or omission of, or in relation to, the Board.

(2) Anything which, when these Regulations take effect, is in the process of being done by, or in relation to, a Primary Care Trust in respect of, or in connection with—

(a) the exercise by the Primary Care Trust of any of its functions under Part 6 of the 2006 Act; or

(b) any rights or liabilities of the Primary Care Trust transferred as a consequence of a property transfer scheme made under section 300 of the 2012 Act,

is deemed to have effect as if done by, or in relation to, and may be continued by, or in relation to, the Board.

(3) Where it is necessary for the Contractor or the Board—

(a) to take account of a period of time; or

(b) to calculate a period of time which is required in accordance with the GOS Regulations as in force on or after the appointed day,

any period of time that occurred before the appointed day and which is relevant to the matter under consideration is to be taken into account or used in order to calculate any time period for the purposes of that consideration or applying provisions in those Regulations on or after the appointed day only if that period of time could have been taken into account or used in a calculation of a time period in respect of those mirror provisions as in force immediately before the appointed day.

PART 4 Amendments to the POS Regulations

Amendments to the POS Regulations

21.  The POS Regulations are amended in accordance with this Part.

Consequential amendments to the POS Regulations

22.  Schedule 2 (which contains amendments consequential on the establishment and abolition by the 2012 Act of various bodies) has effect.

Miscellaneous amendments to the POS Regulations

23.—(1) In regulation 2 (interpretation) for the definition of “Charges Regulations” substitute ““Charges Regulations” means regulations made under section 179 or 180 of the Act;”.

(2) In regulation 3 (sight tests – eligibility)—

(a) in sub-paragraph (1)(d) omit the words “, or equal to,”;

(b) in paragraph (2) omit the words “or equal to”;

(c) for sub-paragraph (2)(c) substitute—

“that person’s income resources as calculated in accordance with Part 4 of, and Schedule 1 to the National Health Service (Travel Expenses and Remission of Charges) Regulations 2003, do not exceed their requirements as so calculated, or exceed their requirements by fifty per cent or less of the amount of the charge specified in regulation 3(1)(b) (supply of drugs and appliances by chemists) of the National Health Service (Charges for Drugs and Appliances) Regulations 2000 and their capital resources as so calculated do not exceed the capital limit;”;

(d) after paragraph (2)(k) add—

“(1) during the period beginning on 29th April 2013 and ending on 31st October 2013, he is—

(i) the recipient of an award of universal credit either as a single person or as a member of a couple;

(ii) a child or qualifying young person for whom a recipient referred to in sub-paragraph (i) is responsible (within the meaning of Part 1 of the Welfare Reform Act 2012 and regulations made thereunder); or

(iii) a member of a couple, the other member of which is the recipient of an award of universal credit as a single person.”

(e) after paragraph (4)(d) insert—

“(e) in sub-paragraph (l)—

(i) “couple” has the meaning given in section 39 of the Welfare Reform Act 2012 (couples);

(ii) “qualifying young person” has the meaning given in section 10(5) of the Welfare Reform Act 2012 (responsibility for children and young persons);

(iii) “single person” is to be construed in accordance with section 1(2)(a) of the Welfare Reform Act 2012 (universal credit)”; and

(iv) “universal credit” means universal credit under Part 1 of the Welfare Reform Act 2012.”(6)

PART 5 Transitional provisions in respect of the POS regulations

Application and interpretation of this Part

24.—(1) This Part makes transitional provisions in respect of the POS Regulations as a consequence of the coming into force of section 34 (abolition of Primary Care Trusts) of the 2012 Act.

(2) In this Part, “Primary Care Trust” means a Primary Care Trust which was established and which subsisted immediately before the coming into force of section 34 (abolition of Primary Care Trusts) of the 2012 Act.

Continuing validity of forms

25.  A form supplied by a Primary Care Trust continues to be a valid form in relation to the Board until it is cancelled or withdrawn by the Board.

Sight tests

26.—(1) For the purposes of regulation 5 of the POS Regulations (sight test treated as a test under general ophthalmic services) where a person’s sight was tested before the appointed day but no notice of entitlement under regulation 5(3) was presented to the Primary Care Trust before that day, such notice may be presented to the Board within the period allowed by regulation 5(1)(b).

(2) Where a sight test took place before the appointed day and falls to be treated under regulation 5 as a sight test under general ophthalmic services, the Board must make the payment under regulation 5(4) if—

(a) having been presented with evidence of any fee paid for the testing, it is satisfied as to the amount, and

(b) no payment has yet been made.

PART 6 Miscellaneous amendments

Amendments to the National Health Service (Charges for Appliances) Regulations 1974

27.  In regulation 2 (interpretation) of the National Health Service (Charges for Appliances) Regulations 1974(7), in the definition of “Authority”, for “in relation to England, a Primary Care Trust;” substitute “in relation to England, the National Health Service Commissioning Board;”.

PART 7 REVOCATIONS

Revocation of the General Ophthalmic Services Amendment Regulations

28.  The following regulations are revoked in so far as they apply in relation to England—

(a) the National Health Service (General Ophthalmic Services) Amendment Regulations 1996(8);

(b) the National Health Service (General Ophthalmic Services) Amendment (No.2) Regulations 1996(9); and

(c) the National Health Service (General Ophthalmic Services) (Amendment) Regulations 1999(10).

Signed by authority of the Secretary of State.

Earl Howe

Parliamentary Under-Secretary of State,

Department of Health

15th February 2013