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PART 6E+WOpt outs: additional and out of hours services

[F1Minor surgery]: permanent opt outsE+W

37.—(1) In this regulation—

(2) [F2NHS England] must, as soon as is reasonably practicable and in any event before the end of the period of 28 days beginning with the date on which [F2NHS England] receives a permanent opt out notice under regulation 35(5) (or temporary opt out notice which is treated as a permanent opt out notice under regulation 35(7))—

(a)approve the opt out notice; or

(b)reject the opt out notice in accordance with paragraph (4).

(3) [F2NHS England] must give notice to the contractor of its decision under paragraph (2) as soon as possible, including the reasons for its decision where that decision is to reject the opt out notice.

(4) [F2NHS England] may reject the opt out notice on the ground that the contractor is providing [F3minor surgery] to patients other than its registered patients, or enhanced services.

(5) A contractor may not withdraw an opt out notice once that notice has been approved by [F2NHS England] in accordance with paragraph (2)(a) without [F2NHS England’s] agreement.

(6) If [F2NHS England] approves the opt out notice under paragraph (2)(a), [F2NHS England] must use reasonable endeavours to make arrangements for the contractor's patients to receive [F4minor surgery] from an alternative provider from A day.

(7) The contractor's duty to provide [F5minor surgery] terminates on A day unless [F2NHS England] gives notice to the contractor under paragraph (8) (extending A day to B day or C day).

(8) If [F2NHS England] is not successful in finding an alternative provider to take on the provision of [F6minor surgery] from A day, then [F2NHS England] must give notice in writing to the contractor of that fact no later than one month before A day, and in a case where A day is—

(a)three months after the date on which the opt out notice was given, the contractor must continue to provide [F6minor surgery] until B day unless, at least one month before B day, the contractor is given notice in writing by [F2NHS England] under paragraph (9) to the effect that, despite using reasonable endeavours, [F2NHS England] has not been able to find an alternative provider to take on the provision of [F6minor surgery] from B day;

(b)six months after the opt out notice was given, the contractor must continue to provide [F6minor surgery] until C day.

(9) Where, in accordance with paragraph (8)(a), the permanent opt out is to commence on B day and [F2NHS England] , despite using reasonable endeavours, has not been able to find an alternative provider to take on the provision of [F7minor surgery] from that day, [F2NHS England] must give notice in writing to the contractor of that fact at least one month before B day, in which case the contractor must continue to provide [F7minor surgery] until C day.

(10) As soon as is practicable and, in any event, within seven days of [F2NHS England] giving notice to the contractor under paragraph (9), [F2NHS England] must enter into discussions with the contractor concerning the support that [F2NHS England] is able to give to the contractor or other changes which [F2NHS England] or the contractor may make in relation to the provision of [F8minor surgery] until C day.

(11) Nothing in the preceding paragraphs prevents the contractor and [F2NHS England] from agreeing a different date for the termination of the contractor's duty under the contract to provide [F9minor surgery] and, accordingly, varying the contract in accordance with regulation 29 and Part 8 of Schedule 3.

(12) The permanent opt out takes effect at 8.00am on the relevant day unless—

(a)the day is Saturday, Sunday, Good Friday, Christmas Day, or a bank holiday in which case the opt out is to take effect on the next working day at 8.00am; or

(b)[F2NHS England] and the contractor agree a different day or time.

Textual Amendments