The Provider Selection Regime is now in force

The Health Care Services (Provider Selection Regime) Regulations 2023 came into force on 1 January 2024.  The regulations can be found here: The Health Care Services (Provider Selection Regime) Regulations 2023 (legislation.gov.uk)

Statutory Guidance

NHS England has now published its final statutory guidance.  Relevant Authorities must have regard to this statutory guidance.  The sections that have been amended in this versions are highlighted at the beginning of the guidance:

https://www.england.nhs.uk/long-read/the-provider-selection-regime-statutory-guidance/

The various changes are highlighted below. In particular, please note the bullet point that refers to the standstill period and how this needs to be calculated.

The following updates have since been made to the final version of the statutory guidance:

  • Applying the regime (direct award process B)– updated references to the amended National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 in relation to patient choice requirements.
  • Transparency– clarified that ‘details of the individual/individuals making the decision’ may mean the name of a committee or job titles of individuals making the decision, as appropriate.
  • Reviewing decisions during the standstill period– The draft statutory guidance and implementation materials used between October and December 2023 stated that the standstill period for reviewing decisions made under the PSR would begin on the working day following the publication of the intention to award a contract notice.
    • The standstill period of eight working days would then be counted from that point.
    • This final version of the statutory guidance clarifies that the regulations, as made into law, in fact mean that relevant authorities must begin the count of working days from the day after the day that the relevant notice is published.
    • This means that the standstill period is longer than initially set out in the draft statutory guidance and implementation materials.
    • The statutory guidance and implementation materials published on 2 January 2024 now reflect this process.
  • Reviewing decisions during the standstill period– further information has now also been set out about the Independent Patient Choice and Procurement Panel.
  • Modification of contracts and framework agreements during their term– clarification to transparency requirements for permitted modifications and clarification to modifications not permitted under the PSR.

Toolkits

NHS England has also published its updated toolkits:

NHS England » Provider Selection Regime toolkit products

Transitional arrangements

The Health and Care Act 2022 (Commencement No. 8 and Transitional and Saving Provision) Regulations 2023 have been made.

These deal with transitional and saving provisions in relation to the procurement of health care services for the purposes of the NHS where a procurement process has started, but has not ended, before 1st January 2024, under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.

The panel

Further information has been published on the Independent Patient Choice and Procurement Panel – the formal name for the PSR review panel:

https://www.england.nhs.uk/commissioning/how-commissioning-is-changing/nhs-provider-selection-regime/independent-patient-choice-and-procurement-panel/

Further information will be published shortly.

Training

NHSE has announced that it will be running further PSR training:

https://www.england.nhs.uk/commissioning/how-commissioning-is-changing/nhs-provider-selection-regime/provider-selection-regime-webinars/

Working alongside the NHS England policy team and NHS England legal team, Hempsons has advised on the development of the PSR over the past two years. Hempsons is therefore well placed to advise on the implications of this new regime for securing the provision of health care services.

Please get in touch with our specialist procurement team if we can assist you with the new rules.

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