Health and Social Care Bill

Session 2010 - 11
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
108

107
Enforcement undertakings
(1)
Monitor may accept an enforcement undertaking from a person if Monitor has
reasonable grounds to suspect that the person—
(a)
has provided, or is providing, a health care service for the purposes of
the NHS in breach of the requirement to hold a licence under this
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Chapter,
(b)
is a licence holder who has provided, or is providing, a health care
service for the purposes of the NHS in breach of a condition of the
licence, or
(c)
is in breach of a requirement imposed by Monitor under section 105.
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(2)
In this Chapter, “enforcement undertaking” means an undertaking from a
person to take such action of a kind mentioned in subsection (3) as may be
specified in the undertaking within such period as may be so specified.
(3)
The specified action must be—
(a)
action to secure that the breach in question does not continue or recur,
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(b)
action to secure that the position is, so far as possible, restored to what
it would have been if the breach in question was not occurring or had
not occurred,
(c)
action (including the payment of a sum of money) to benefit—
(i)
any other licence holder affected by the breach, or
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(ii)
any commissioner of health care services for the purposes of the
NHS which is affected by the breach, or
(d)
action of such a description as may be prescribed.
(4)
Where Monitor accepts an enforcement undertaking then, unless the person
from whom the undertaking is accepted has failed to comply with the
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undertaking or any part of it—
(a)
Monitor may not impose on that person any discretionary requirement
which it would otherwise have power to impose by virtue of section
106 in respect of the breach to which the undertaking relates, and
(b)
if the breach to which the undertaking relates falls within subsection
30
(1)(b), Monitor may not revoke that person’s licence under section
93(b).
(5)
Where a person from whom Monitor has accepted an enforcement
undertaking has failed to comply fully with the undertaking but has complied
with part of it, Monitor must take the partial compliance into account in
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deciding whether—
(a)
to impose a discretionary requirement on the person in respect of the
breach to which the undertaking relates, or
(b)
if the breach to which the undertaking relates falls within subsection
(1)(b), to revoke the person’s licence under section 93(b).
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108
Further provision about enforcement powers
Schedule 11 (Part 1 of which makes further provision about discretionary
requirements and Part 2 of which makes further provision about enforcement
undertakings) has effect.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
109

109
Guidance as to use of enforcement powers
(1)
Monitor must publish guidance about how it intends to exercise its functions
under sections 106 and 107 and Schedule 11.
(2)
Monitor may revise the guidance and, if it does so, must publish the guidance
as revised.
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(3)
Monitor must consult such persons as it considers appropriate before
publishing or revising the guidance.
(4)
Guidance relating to Monitor’s functions under section 106 must include
information about—
(a)
the circumstances in which Monitor is likely to impose a discretionary
10
requirement,
(b)
the circumstances in which Monitor may not impose a discretionary
requirement,
(c)
the matters likely to be taken into account by Monitor in determining
the amount of any variable monetary penalty to be imposed (including,
15
where relevant, any discounts for voluntary reporting of breaches in
respect of which a penalty may be imposed), and
(d)
rights to make representations and rights of appeal.
(5)
Monitor must have regard to the guidance or (as the case may be) revised
guidance in exercising its functions under sections 106 and 107 and Schedule
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11.
110
Publication of enforcement action
(1)
Monitor must include information about the following in its annual report—
(a)
the cases in which a discretionary requirement has been imposed
during the financial year to which the report relates, and
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(b)
the cases in which an enforcement undertaking has been accepted
during that financial year.
(2)
But Monitor must not include commercial information which it is satisfied
would or might significantly harm the legitimate business interests of the
person to whom it relates.
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(3)
The reference in subsection (1)(a) to cases in which a discretionary requirement
has been imposed does not include a reference to a case where a discretionary
requirement has been imposed but overturned on appeal.
111
Notification of enforcement action
(1)
As soon as reasonably practicable after imposing a discretionary requirement
35
or accepting an enforcement undertaking Monitor must notify the following of
that fact—
(a)
the National Health Service Commissioning Board,
(b)
such commissioning consortia as are likely to be affected by the
imposition of the requirement or the acceptance of the undertaking,
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and
(c)
any person exercising regulatory functions in relation to the person on
whom the discretionary requirement was imposed or from whom the
enforcement undertaking was accepted.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
110

(2)
In subsection (1) “regulatory functions” has the same meaning as in the
Legislative and Regulatory Reform Act 2006 (see section 32 of that Act).
Transitional provision
112
Designation of NHS foundation trusts during transitional period
(1)
Monitor may designate an NHS foundation trust for the purposes of this
5
section and section 113 if it is satisfied that the trust meets such criteria as are
set and published by Monitor.
(2)
Before publishing criteria under subsection (1), Monitor must consult—
(a)
the Secretary of State,
(b)
the Care Quality Commission, and
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(c)
such other persons as Monitor considers are likely to be affected by a
designation under this section.
(3)
A designation under this section of a trust authorised before the day on which
this Chapter comes into force (“the licensing commencement day”) does not
have effect unless—
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(a)
Monitor gives notice of the designation to the Secretary of State, and
(b)
before the end of the period of 28 days beginning with the day after that
on which the Secretary of State receives the notice, the Secretary of State
approves the designation.
(4)
A trust authorised before the licensing commencement day may not be
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designated under this section after that day; but approval under subsection
(3)(b) may be given after that day.
(5)
A designation under this section of a trust authorised before the licensing
commencement day expires at the end of the period of two years beginning
with that day.
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(6)
A designation under this section of a trust authorised on or after the licensing
commencement day takes effect when the designation is given.
(7)
A trust authorised on or after the licensing commencement day may not be
designated under this section other than at the time when the trust is
authorised.
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(8)
A designation under this section of a trust authorised on or after the licensing
commencement day expires at the end of the period of two years beginning
with the day on which the designation is given.
(9)
Where Monitor is satisfied that a trust in respect of which a designation under
this section has effect does not meet the criteria under subsection (1), it may
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remove the designation from the trust.
(10)
The Secretary of State may by order provide that subsections (5) and (8) are to
have effect with the substitution of a longer period for the period specified
there (whether originally or by virtue of a previous order).
(11)
In this section, a reference to being authorised is a reference to being given an
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authorisation under section 35 of the National Health Service Act 2006.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
111

113
Imposition of licence conditions on designated NHS foundation trusts
(1)
This section applies in relation to an NHS foundation trust in respect of which
a designation under section 112 has effect.
(2)
Where Monitor is satisfied that there is a significant risk that the trust will fail
to fulfil its principal purpose (as to which, see section 43(1) of the National
5
Health Service Act 2006), Monitor may include in the trust’s licence such
conditions as it considers appropriate for the purpose of reducing that risk.
(3)
A condition included under subsection (2) has effect until the designation
expires.
(4)
Monitor may modify a condition included under subsection (2).
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(5)
Where Monitor is satisfied that the trust has breached or is breaching a
condition included under subsection (2), Monitor may by notice—
(a)
require the trust, the directors or the council of governors to do, or not
to do, specified things or things of a specified description (or to do, or
not to do, any such things in a specified manner) within such period as
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may be specified;
(b)
remove one or more of the directors or members of the council of
governors and appoint interim directors or members of the council;
(c)
suspend one or more of the directors or members of the council from
office as a director or member for a specified period;
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(d)
disqualify one or more of the directors or members of the council from
holding office as a director or member for a specified period.
(6)
Where Monitor is satisfied that a person has breached or is breaching a
requirement imposed under subsection (5)(a), or has otherwise failed or is
otherwise failing to comply with a notice under that subsection, Monitor may
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by notice exercise one or more of the powers specified in paragraphs (a) to (d)
of subsection (5).
(7)
A power under subsection (5) (including as it applies by virtue of subsection
(6)) may be exercised only while the designation has effect.
(8)
Subsection (5) does not prevent Monitor from exercising the powers conferred
30
by sections 106 and 107 (discretionary requirements and enforcement
undertakings) in relation to conditions included under subsection (2).
(9)
Where Monitor includes a condition under subsection (2), it may also make
such incidental or consequential modifications as it considers necessary or
expedient of any other condition of the licence concerned which is affected.
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(10)
Where Monitor includes a condition under subsection (2) by modifying a
standard condition of the licence concerned, the modification does not prevent
any other part of the condition from continuing to be regarded as a standard
condition for the purposes of this Chapter.
(11)
A reference in this section to failing to discharge functions includes a reference
40
to failing to discharge those functions properly.
(12)
Omit section 52 of the National Health Service Act 2006 (failing NHS
foundation trusts); and in consequence of that, omit—
(a)
section 39(2)(f) of that Act (copy of notice under section 52 of that Act
to be on register), and
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing
112

(b)
paragraph 22(1)(f) of Schedule 7 to that Act (copy of that notice to be
available for public inspection).
Chapter 5
Pricing
114
Price payable by commissioners for NHS services
5
(1)
If a health care service is specified in the national tariff (as to which, see section
115), the price payable for the provision of that service for the purposes of the
NHS is (subject to sections 122 and 123) such price as is determined in
accordance with the national tariff on the basis of the price (referred to in this
Chapter as “the national price”) specified in the national tariff for that service.
10
(2)
If a health care service is not specified in the national tariff, the price payable
for the provision of that service for the purposes of the NHS is such price as is
determined in accordance with the rules provided for in the national tariff for
that purpose.
115
The national tariff
15
(1)
Monitor must publish a document, to be known as “the national tariff”,
which—
(a)
specifies certain health care services which are or may be provided for
the purposes of the NHS,
(b)
specifies the method used for determining the national prices of those
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services,
(c)
specifies the national price of each of those services,
(d)
provides for rules for the variation of the national price of a service
according to such aspects of the provision of the service, and such other
matters, as are specified in the national tariff, and
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(e)
provides rules for determining the price payable for the provision for
those purposes of health care services which are not specified under
subsection (1)(a).
(2)
The national tariff must also provide for rules under which the commissioner
of a health care service specified in the national tariff and the providers of that
30
service may agree to vary—
(a)
the specification of the service under subsection (1)(a), or
(b)
the national price of the service.
(3)
The national tariff may also provide for rules relating to the making of
payments to the provider of a health care service for the provision of that
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service.
(4)
The national tariff must include guidance as to the application of rules
provided for under subsections (1)(d) and (e) and (2).
(5)
Different methods may be specified under subsection (1)(b) for different
descriptions of health care service.
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(6)
The national tariff may, in the case of a specified health care service or health
care services of a specified description, specify different national prices or
provide for different rules under subsection (1)(d)—

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing
113

(a)
according to whether the service has been designated under section 76;
(b)
in relation to different descriptions of provider.
(7)
A description for the purposes of subsection (6)(b) may not be framed by
reference to—
(a)
whether the provider is in public or private ownership, or
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(b)
some other aspect of the status of the provider.
(8)
The national tariff may not specify a national price for a health care service
provided pursuant to the public health functions of the Secretary of State, or of
a local authority, under the National Health Service Act 2006.
(9)
The national tariff has effect for such period as is specified in the national tariff
10
(or, where a new edition of the national tariff takes effect before the end of that
period, until that new edition takes effect).
(10)
In exercising its functions under this Chapter, Monitor must (in addition to the
matters specified in section 58) have regard to the objectives and requirements
for the time being specified in the mandate published under section 13A of the
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National Health Service Act 2006.
116
The national tariff: further provision
(1)
The ways in which a health care service may be specified in the national tariff
under section 115(1)(a) include in particular—
(a)
specifying it by reference to its components,
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(b)
specifying it as a service (a “bundle”) that comprises two or more health
care services which together constitute a form of treatment,
(c)
specifying it as a service in a group of standardised services.
(2)
Where a service is specified in accordance with subsection (1)(a), the national
tariff must specify a national price for each component of the service.
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(3)
Where a service is specified in accordance with subsection (1)(b), the national
tariff must specify a national price for the bundle.
(4)
Where a service is specified in accordance with subsection (1)(c), the national
tariff must specify a single price as the national price for each service in the
group.
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(5)
Neither a component specified in accordance with subsection (1)(a) nor a
service comprised in a bundle specified in accordance with subsection (1)(b) is
to be treated for the purposes of this Part as a service capable of being provided
separately for the purposes of the NHS except—
(a)
where the component, or the service comprised in the bundle, is
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specified separately under subsection (1)(a) of section 115, or
(b)
in accordance with rules under subsection (2) of that section.
117
Consultation on proposals for the national tariff
(1)
Before publishing the national tariff, Monitor must send a notice to—
(a)
each commissioning consortium,
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(b)
each licence holder, and
(c)
such other persons as it considers appropriate.
(2)
Monitor must also publish the notice.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing
114

(3)
The notice must specify—
(a)
the health care services which Monitor proposes to specify in the
national tariff,
(b)
the method or methods it proposes to use for determining the national
prices of those services,
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(c)
the national price that is determined as the national price of each of
those services by using the applicable method, and
(d)
the rules for which Monitor proposes to provide for determining the
price payable for the provision for the purposes of the NHS of health
care services not specified under subsection (3)(a).
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(4)
The notice must also specify the rules for which Monitor proposes to provide
in the national tariff under which the commissioner of a health care service and
a provider of the service would be entitled to vary—
(a)
the specification of the service in the national tariff, or
(b)
the national price of the service.
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(5)
The health care services specified for the purposes of subsection (3)(a) are only
such services as the National Health Service Commissioning Board considers
should be so specified and—
(a)
as the Board and Monitor agree will be so specified, or
(b)
in default of agreement, as are determined by arbitration as being
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services that will be so specified.
(6)
In exercising functions under subsection (5), the Board and Monitor must act
with a view to securing the standardisation throughout England of the
specification of health care services in the national tariff under section
115(1)(a).
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(7)
A method specified for the purposes of subsection (3)(b) is only such method
as Monitor considers should be so specified and—
(a)
as Monitor and the Board agree will be so specified, or
(b)
in default of agreement, as is determined by arbitration as being the
method that will be so specified.
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(8)
The prices specified for the purposes of subsection (3)(c) are only such prices
as Monitor considers should be so specified and—
(a)
as Monitor and the Board agree will be so specified, or
(b)
in default of agreement, as are determined by arbitration as being the
prices that will be so specified.
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(9)
The rules specified for the purposes of subsection (3)(d) are only such rules as
Monitor considers should be so specified and—
(a)
as Monitor and the Board agree will be so specified, or
(b)
in default of agreement, as are determined by arbitration as being the
rules that will be so specified.
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(10)
The rules specified for the purposes of subsection (4) are only such rules as the
National Health Service Commissioning Board considers should be so
specified and—
(a)
as the Board and Monitor agree will be so specified, or
(b)
in default of agreement, as are determined by arbitration as being the
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rules that will be so specified.