Appeal process introduced for overpayment recovery by NHS England

Appeal process introduced for overpayment recovery by NHS England

July 24, 2018

From August 1st community pharmacy contractors will be able to appeal against an NHS England decision to recover overpayments to their businesses as part of the pharmacy provider assurance programme (see below).

New Directions will come into force giving contractors a process through which to appeal within 30 days of being notified of an overpayment decision by NHS England. The appeal must be made to an officer or employee of the NHS Litigation Service or a committee established in accordance with the Directions (in practice this means the Primary Care Appeals Service (previously the FHSAU) of NHS Resolution).

The National Health Service Litigation Authority (Pharmaceutical Remuneration – Overpayments) (England) Directions 2018 are being introduced to plug a gap in the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 which refer to an appeal option for contractors but provide no mechanism for the appeal. This was noticed as part the development of the NHS pharmacy provider assurance programme and, at PSNC’s request, NHS England agreed not to seek to recover overpayments until an appeal mechanism had been made available to contractors.

Background information on the NHS Pharmacy Provider Assurance programme

Last year, NHS England started a proof of concept for a national approach to post-payment verification/provider assurance of Advanced Services. Provider assurance is undertaken by NHS Business Services Authority (NHS BSA), and information is available on the PSNC website.

The initial focus was on the Medicines Use Review (MUR) Service, which was followed by the New Medicines Service; the Flu Vaccination Service will be included for 2018/19.

Contractor compliance with the assurance process has been high, and the initial results from the MUR pilot indicated that 97% of contractors provided appropriate evidence to verify their payment claims. In July this year, PSNC accepted this aspect of national provider assurance work as ‘business as usual’.

NHS England will recover overpayments from those who have not provided the relevant service and who have incorrectly claimed payment. Regulation 94 of the 2013 Regulations says that NHS England may recover an overpayment either where the contractor admits it, or where the ‘outcome of an investigation or appeal is that there has been an overpayment’.

At PSNC’s request, NHS England agreed not to seek to recover overpayments until an appeal mechanism had been made available to contractors, which the new Directions provide. For reasons of consistency and efficiency, NHS England is moving to a national approach for the recovery of overpayments during the NHS BSA pharmacy provider assurance activity, and this aspect of pharmacy provider assurance will need to be tested, before PSNC accepts it as ‘business as usual’.

This was discussed at PSNC’s July 2018 meeting. A summary of all the topics discussed at that meeting is available here.

Information on the new appeals process

The Primary Care Appeals Service may determine the appeal in a manner it sees fit. An oral hearing will be arranged at the contractor’s request, but only if this is considered necessary. The appeal will be dismissed if it is not brought within the appeal period, or if it contains no valid grounds (e.g. it amounts to a challenge to the legality or reasonableness of the Directions, the Regulations or Drug Tariff). If an oral hearing is arranged, the Primary Care Appeals Service must give no less than 14 days’ notice to NHS England and the contractor of the time and place of the oral hearing.

In deciding the case, the Primary Care Appeals Service may dismiss it, substitute its decision for any decision NHS England could have taken (i.e. decide there has been no overpayment) or quash the decision (it may pass the matter back to NHS England with any directions it considers appropriate). The Primary Care Appeals Service must notify the contractor and NHS England of its decision, which must include a statement of the reasons for its decision and its findings of fact. The decision may be overturned by a court (in effect by judicial review).

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