Health and Care Bill (HL Bill 71)

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19(1)Section 65N (guidance) is amended as follows.

(2)In subsection (1), for “the Secretary of State” substitute “NHS England”.

(3)In subsection (1A), omit paragraph (b).

(4)In subsection (3A), for “the Secretary of State” substitute “NHS England”.

(5)5Omit subsection (4).

20In section 65O (interpretation of Chapter), in subsection (1), in the definition
of “trust special administrator”, for “65B(6)(a)” substitute “65B(8)(a)”.

21In section 272 (orders, regulations, rules and directions), in subsection
(5)(ab), after “65L(2)” insert “, (2B)”.

10Part 2 Consequential amendments

National Health Service Act 2006

22The National Health Service Act 2006 is amended as follows.

23In section 13Q (public involvement and consultation by NHS England), for
15subsection (4) substitute—

(4)This section does not require NHS England to make arrangements in
relation to matters to which a trust special administrator’s draft or
final report under section 65F or 65I relates before—

(a)in a case where the administrator’s report relates to an NHS
20trust, NHS England and the Secretary of State have made
their decisions under section 65K(1) and (2), or

(b)in a case where the administrator’s report relates to an NHS
foundation trust, the Secretary of State is satisfied as
mentioned in section 65KB(1) or 65KD(1) or makes a decision
25under section 65KD(9).”

24In section 242 (public involvement and consultation by NHS trusts), for
subsection (6) substitute—

(6)This section does not require a body to make arrangements in
relation to matters to which a trust special administrator’s draft or
30final report under section 65F or 65I relates before—

(a)in a case where the administrator’s report relates to an NHS
trust, NHS England and the Secretary of State have made
their decisions under section 65K(1) and (2), or

(b)in a case where the administrator’s report relates to an NHS
35foundation trust, the Secretary of State is satisfied as
mentioned in section 65KB(1) or 65KD(1) or makes a decision
under section 65KD(9).”

Health and Social Care Act 2008

25In section 29A of the Health and Social Care Act 2008 (warning notice:
40quality of health care), in subsection (5), for paragraph (b) substitute—

(b)must consider in particular whether to require NHS England
to make an order under section 65B(1) or 65D(2) of the

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National Health Service Act 2006 (appointment of trust
special administrator).”

Section 63

Schedule 9 References to functions: treatment of delegation arrangements etc

5Local Government Act 1974

1In section 26 of the Local Government Act 1974 (matters subject to
investigation), in subsection (1), for paragraph (d) substitute—

(d)an alleged or apparent failure in a service provided by the
authority in the exercise of public health functions of the
10Secretary of State (within the meaning of the National Health
Service Act 2006) in pursuance of arrangements made under
section 7A, 65Z5 or 75 of the National Health Service Act
2006;”.

Children Act 1989

215In section 105 of the Children Act 1989 (interpretation), for subsection (7B)
substitute—

(7B)References in this Act to arrangements made by NHS England or an
integrated care board under the National Health Service Act 2006
include references to arrangements so made in the exercise of
20functions of another person by virtue of any provision of that Act.”

National Health Service and Community Care Act 1990

3In section 47 of the National Health Service and Community Care Act 1990
(assessment of needs for community care services), in subsection (3), for
paragraph (za) substitute—

(za)25that there may be a need for the provision of services to that
person pursuant to arrangements made under the National
Health Service Act 2006 by such integrated care board as may
be determined in accordance with regulations (including
such arrangements made by it in the exercise of functions of
30another person by virtue of any provision of that Act),”.

Adoption and Children Act 2002

4In section 4 of the Adoption and Children Act 2002 (assessments etc for
adoption support services), in subsection (9), for paragraph (za) substitute—

(za)there may be a need for the provision to that person of
35services that may be provided pursuant to arrangements
made by an integrated care board under the National Health
Service Act 2006 (including such arrangements made by an
integrated care board in the exercise of functions of another
person by virtue of any provision of that Act),”.

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Health and Social Care (Community Health and Standards) Act 2003

5In section 113 of the Health and Social Care (Community Health and
Standards) Act 2003 (complaints about health care), in subsection (1)—

(a)at the end of paragraph (a) insert “(including any function that
5consists of exercising the function of another person)”;

(b)in paragraph (c), omit “section 75 of the National Health Service Act
2006 or”;

(c)omit paragraph (d).

National Health Service Act 2006

610The National Health Service Act 2006 is amended as follows.

7In section 13Z4 (interpretation of Chapter A1 of Part 2), omit subsections (2)
to (4).

8In section 73A (appointment of directors of public health), in subsection (1),
after paragraph (c) insert—

(ca)15the exercise by the authority of any public health functions of
the Secretary of State in pursuance of arrangements made
with another body by virtue of section 65Z5 or 75,”.

9In section 73B (exercise of public health functions of local authorities: further
provision), in subsection (2), after paragraph (c) insert—

(ca)20any public health functions of the Secretary of State
exercisable by the authority in pursuance of arrangements
made with another body by virtue of section 65Z5 or 75,”.

10In section 73C (complaints about exercise of public health functions by local
authorities), in subsection (1), after paragraph (c) insert—

(ca)25anything done by a local authority in the exercise of public
health functions of the Secretary of State in pursuance of
arrangements made with another body by virtue of section
65Z5 or 75;”.

11In section 223K (payments in respect of quality), in subsection (8), for the
30definition of “relevant services” substitute—

  • ““relevant services” means services provided in pursuance of
    arrangements made by the integrated care board in the
    exercise of its functions by virtue of this Act;”.

12In section 244 (review and scrutiny by local authorities), in subsection (3), in
35the definition of “relevant health service provider”, for paragraph (a) (but
not the “and” at the end) substitute—

  • “(a)

    provides services in pursuance of arrangements
    made by virtue of this Act,”.

13In section 252A (role of NHS England and clinical commissioning groups in
40respect of emergencies), in subsection (10), for the definition of “service
arrangements” substitute—

  • ““service arrangements” means arrangements made by virtue
    of this Act for the provision of services.”

14In section 253 (emergency powers), in subsection (1A), in paragraph (d), for
45sub-paragraphs (i) to (iv) substitute “by virtue of this Act”.

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Local Government and Public Involvement in Health Act 2007

15After section 116B of the Local Government and Public Involvement in
Health Act 2007 insert—

116C Sections 116 to 116B: references to functions

5Section 275A of the National Health Service Act 2006 (references to
functions of a person to include delegated functions etc) applies for
the purposes of sections 116 to 116B of this Act as it applies for the
purposes of that Act.”

Health and Social Care Act 2008

1610In section 97 of the Health and Social Care Act 2008 (general interpretation
of Part), for subsection (2A) substitute—

(2A)Any reference in this Part to health care commissioned by NHS
England or by an integrated care board is a reference to health care
provided by other persons pursuant to arrangements made by NHS
15England or an integrated care board (including arrangements made
by it in the exercise of functions of another person by virtue of any
provision of the National Health Service Act 2006).”

Health and Social Care Act 2012

17The Health and Social Care Act 2012 is amended as follows.

1820In section 197 (participation of NHS England in Health and Wellbeing
Board), in the definition of “commissioning functions” in subsection (6), at
the end insert “(including any functions of NHS England in arranging for the
provision of such services in the exercise of functions of another person)”.

19In section 199 (supply of information to Health and Wellbeing Boards), omit
25subsection (4).

20In section 234 (quality standards), in subsection (11), for the definition of
NHS services” substitute—

  • ““NHS services” means services the provision of which is
    arranged by NHS England or an integrated care board
    30(including services the provision of which is arranged by it in
    the exercise of functions of another person by virtue of any
    provision of the National Health Service Act 2006);”.

21In section 237 (advice, guidance, information and recommendations), in
subsection (10), for paragraphs (b) and (c) substitute—

(b)35the exercise by an authority of the functions of any other
person by virtue of any provision of that Act.”

22In section 250 (powers to publish information standards), in subsection (7),
for the definition of “NHS services”, substitute—

  • ““NHS services” means services the provision of which is
    40arranged by NHS England or an integrated care board
    (including services the provision of which is arranged by it in
    the exercise of functions of another person by virtue of any
    provision of the National Health Service Act 2006);”.

23In section 263 (code of practice on confidential information), after subsection

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 (7) insert—

(8)In this section “NHS services” means services the provision of which
is arranged by NHS England or an integrated care board (including
services the provision of which is arranged by it in the exercise of
5functions of another person by virtue of any provision of the
National Health Service Act 2006).”

24In section 274 (powers of Secretary of State or Board to give directions), in
subsection (9), at the appropriate place insert—

  • ““NHS services” means services the provision of which is
    10arranged by NHS England or an integrated care board
    (including services the provision of which is arranged by it in
    the exercise of functions of another person by virtue of any
    provision of the National Health Service Act 2006);”.

25In section 290 (duties to co-operate ), in subsection (2), at the end insert
15“(including any functions that consist of exercising the functions of other
persons)”.

Section 68

Schedule 10 The NHS payment scheme

1The Health and Social Care Act 2012 is amended as follows.

220In section 97 (conditions of licences for health care service providers), in
subsection (1)(g), for “the national tariff (see section 116)” substitute “the
NHS payment scheme (see section 114A)”.

3In Part 3, for Chapter 4 substitute—

“Chapter 4 25The NHS payment scheme

114A The NHS payment scheme

(1)NHS England must publish a document, to be known as “the NHS
payment scheme”, containing rules for determining the price that is
to be payable by a commissioner—

(a)30for the provision of health care services for the purposes of
the NHS;

(b)for the provision of services in pursuance of arrangements
made by NHS England or an integrated care board in the
exercise of any public health functions of the Secretary of
35State, within the meaning of the National Health Service Act
2006, by virtue of any provision of that Act.

(2)The commissioner and the provider of services mentioned in
subsection (1) must comply with rules under that subsection.

(3)Rules under subsection (1) may, in particular—

(a)40specify prices;

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(b)specify amounts, formulae or other matters on the basis of
which prices are to be determined;

(c)provide for prices to be determined for, or by reference to,
components of services or groups of services;

(d)5make different provision for different services or provision
for some services but not others;

(e)make different provision for the same service by reference to
different circumstances or areas, different descriptions of
provider, or other factors relevant to the provision of the
10service or the arrangements for its provision;

(f)confer a discretion on the commissioner of a service or on
NHS England.

(4)Rules under subsection (1) may allow or require a price to be agreed
between the commissioner and the provider of a service.

(5)15Rules made by virtue of subsection (4) may—

(a)make provision about how the price is to be agreed;

(b)allow the agreement to make any provision that could be
made by rules by virtue of subsection (3);

(c)provide for the publication by the commissioner, the
20provider or NHS England of information relevant to the
agreement.

(6)For the purpose of securing that the prices payable for the provision
of services mentioned in subsection (1)(a) or (b) result in a fair level
of pay for providers of those services, NHS England must, in
25exercising functions under subsection (1), have regard to—

(a)differences in the costs incurred in providing those services
to persons of different descriptions, and

(b)differences between providers with respect to the range of
those services that they provide.

(7)30The NHS payment scheme may contain rules relating to the making
of payments to the provider of a service for the provision of that
service.

(8)The NHS payment scheme may contain guidance as to the
application of rules under subsection (1).

(9)35A commissioner of a service mentioned in subsection (1) must have
regard to any such guidance.

(10)The NHS payment scheme has effect for the period specified in the
NHS payment scheme or, where a new edition of the NHS payment
scheme takes effect before the end of that period, until that new
40edition takes effect.

114B The NHS payment scheme: enforcement

Where the commissioner of a service fails to comply with rules
contained in the NHS payment scheme, NHS England may direct the
commissioner to take steps specified in the direction, within a period
45specified in the direction—

(a)to secure that the failure does not continue or recur, or

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(b)to secure that the position is (so far as practicable) restored to
what it would have been if the failure was not occurring or
had not occurred.

114C The NHS payment scheme: impact assessment and consultation

(1)5Before publishing the NHS payment scheme, NHS England must—

(a)carry out an assessment of the likely impact of the proposed
scheme, or

(b)publish a statement setting out its reasons for concluding that
such assessment is not needed.

(2)10Before publishing the NHS payment scheme, NHS England must
consult the following—

(a)each integrated care board;

(b)each relevant provider;

(c)such other persons as NHS England considers appropriate.

(3)15NHS England must give those persons a notice—

(a)describing the proposed NHS payment scheme,

(b)setting out any impact assessment carried out under
subsection (1)(a), and

(c)specifying when the period within which representations
20may be made about the proposed NHS payment scheme
(“the consultation period”) will come to an end.

(4)The consultation period is the period of 28 days beginning with the
day after that on which the notice is published.

(5)NHS England must publish the notice given under subsection (2).

(6)25If, having consulted under this section—

(a)NHS England decides to make amendments of the proposed
NHS payment scheme that are, in its opinion, significant, and

(b)it would, in NHS England’s opinion, be unfair to make the
amendments without further consultation,

30NHS England must consult again under this section.

(7)Subsection (6) does not apply where section 114D applies.

(8)In this section “relevant provider” means—

(a)a licence holder, or

(b)another person, of a prescribed description, that provides—

(i)35health care services for the purposes of the NHS, or

(ii)services in pursuance of arrangements made by NHS
England or an integrated care board by virtue of
section 7A or 7B of the National Health Service Act
2006 (Secretary of State’s public health functions).

114D 40Objections to proposed NHS payment scheme

(1)This section applies where—

(a)within the consultation period under section 114C, NHS
England receives objections to the proposed NHS payment
scheme from one or more integrated care boards or relevant
45providers, and

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(b)either or both of the following apply—

(i)the objection percentage for integrated care boards
exceeds the prescribed percentage;

(ii)the objection percentage for relevant providers
5exceeds the prescribed percentage.

(2)In subsection (1)(b) the “objection percentage” is the proportion
(expressed as a percentage) of integrated care boards or (as the case
may be) relevant providers that objected.

(3)NHS England must consult such persons as appear to NHS England
10to be representative of the integrated care boards or relevant
providers from whom objections were received.

(4)If, having complied with subsection (3)

(a)NHS England decides to make amendments of the proposed
NHS payment scheme that are, in its opinion, significant, and

(b)15it would, in NHS England’s opinion, be unfair to make the
amendments without further consultation,

NHS England must consult again under section 114C.

(5)If, having complied with subsection (3), NHS England decides not to
amend the proposed NHS payment scheme, it may publish the
20scheme but, before doing so, must—

(a)publish a notice stating that decision and setting out the
reasons for it, and

(b)send a copy of the notice to—

(i)the persons consulted under subsection (3), and

(ii)25the integrated care boards or relevant providers from
whom objections were received.

114E Amendments of the NHS payment scheme

(1)NHS England may amend the NHS payment scheme during the
period for which it has effect, provided that, in the opinion of NHS
30England, the amendments are not so significant as to require
publication of a new edition of the NHS payment scheme.

(2)In deciding whether the amendments are so significant as to require
the publication of a new edition of the NHS payment scheme, NHS
England must have regard to—

(a)35the proportion of integrated care boards that would be
affected by the proposed amendments;

(b)the proportion of relevant providers that would be affected
by the proposed amendments;

(c)the impact that the proposed amendments would have on
40integrated care boards and relevant providers that would be
affected by them;

(d)whether any integrated care boards or relevant providers
would be disproportionately affected by the proposed
amendments;

(e)45the amount of any increase or decrease in prices that would
result from the proposed amendments.

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(3)If NHS England amends the NHS payment scheme, it must publish
the NHS payment scheme as amended.

(4)Before amending the NHS payment scheme, NHS England must, in
accordance with subsections (5) to (7), consult the following about
5the proposed amendments—

(a)any integrated care boards that would be affected by the
proposed amendments;

(b)any relevant providers that would be affected by the
proposed amendments;

(c)10such other persons as NHS England considers appropriate.

(5)NHS England must publish a notice specifying—

(a)the proposed amendments, and

(b)when the period within which representations may be made
about the proposed amendments (“the consultation period”)
15will come to an end.

(6)The consultation period is the period of 28 days beginning with the
day after that on which the notice is published.

(7)NHS England must send a copy of the notice to each of the persons
to be consulted under subsection (4).

114F 20Interpretation

In this Chapter—

  • “commissioner”, in relation to a service, means the person who
    arranges for the provision of the service;

  • “the NHS payment scheme” means the document published
    25under section 114A(1);

  • “relevant provider” has the meaning given by section 114C(8).”

4In section 304 (regulations, orders and directions), in subsection (5), for
paragraph (g) substitute—

(g)regulations under section 114D(1)(b)(i) or (ii) (percentage to
30be prescribed in cases of objections to proposals for NHS
payment scheme);”.

Section 69

Schedule 11 Patient choice: undertakings by integrated care boards

After Schedule 1 to the National Health Service Act 2006 insert—

Section 6F

35Schedule 1ZA Patient choice: undertakings by integrated care boards

Introductory

1This Schedule makes further provision about undertakings under
section 6F.

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Procedure

2(1)NHS England must publish a procedure for entering into
undertakings.

(2)NHS England may revise the procedure and, if it does so, NHS
5England must publish the procedure as revised.

(3)NHS England must consult such persons as it considers
appropriate before publishing or revising the procedure.

3(1)Where NHS England accepts an undertaking, NHS England must
publish the undertaking.

(2)10But NHS England must not under sub-paragraph (1) publish any
part of an undertaking which contains information which it is
satisfied is—

(a)commercial information the disclosure of which would, or
might, significantly harm the legitimate business interests
15of the person to whom it relates;

(b)information relating to the private affairs of an individual
the disclosure of which would, or might, significantly
harm that person’s interests.

Variation of terms

420The terms of an undertaking (including, in particular, the action
specified under it and the period so specified within which the
action must be taken) may be varied if both the integrated care
board giving the undertaking and NHS England agree.

Compliance certificates

5(1)25Where NHS England is satisfied that an undertaking has been
complied with, NHS England must issue a certificate to that effect
(referred to in this Schedule as a “compliance certificate”).

(2)An integrated care board which has given an undertaking may at
any time make an application to NHS England for a compliance
30certificate.

(3)The application must be made in such form, and accompanied by
such information, as NHS England requires.

(4)NHS England must decide whether or not to issue a compliance
certificate, and give notice to the applicant of its decision, before
35the end of the period of 14 days beginning with the day after that
on which the application is received.

6(1)An appeal lies to the First-tier Tribunal against a decision of NHS
England to refuse an application for a compliance certificate.

(2)The grounds for an appeal under this paragraph are that the
40decision was—

(a)based on an error of fact,

(b)wrong in law, or

(c)unfair or unreasonable.