Two recent National Health Service Litigation Authority (FHSAU) decisions look set to favourably adjust the balance of power between the new commissioners (NHS England) and dental contractors in relation to clawback demands resulting from alleged patterns of rogue claiming.
Many contractors have experienced the habit of some primary care trusts of picking out purported inappropriate claims in a sample. They identify them as a percentage of the sample and on the assumption that the sample is indicative of the total pattern of claiming, apply that percentage to the whole annual contract value often across successive years and demand huge sums be repaid.
Contractors have fought such claims, often successfully reducing the demand to a much smaller amount.
It has been possible to show that the sample of record cards, sometimes a relatively very small number, is not representative of the claims made in relation to the treatment of the whole patient base. This has sometimes been the case as a result of the way in which the PCT chose the sample in the first place, identifying cards where treatment has been provided and claims made on the basis of ‘outliers’, statistics which show certain patterns of claiming above or below the PCT or national average.
So-called inappropriate claims and alleged breaches of contract may be challenged as appropriate. There are a number of grey areas. The NHS Dental Service’s document Exception Reports Guidance Notes provides an insight into what PCTs looked for and what breaches of contract the outliers could indicate.
There were always some favourites:
• A high number of multiple FP17s suggested treatment-splitting.
• More frequent than average recalls in order to derive more UDAs from the existing patient base.
• Above average urgent courses of treatment (COTs) as not genuinely ‘urgent’ as described in the contract. Some contractors have had difficulties defending this as they recorded the patient as being in ‘pain’ rather than in ‘severe pain’, as required.
There have been some near-ridiculous attempts by PCTs to claw back money. In such circumstances, good record-keeping can save the contractor, poor record-keeping can make life more difficult.
For example, for contractors who have neglected to tick the examination box on the FP17, PCTs have suggested that there is no evidence that an examination was carried out, and therefore, as the contract makes clear that UDAs may only be claimed in a COT which must include an examination, payments in relation to all courses of treatment where this applied should all be repaid. This approach obviously ignores logic. How was the contractor able to go on to prescribe a course of treatment if no examination was carried out?
By attempting to rely on paragraph 11.7(b) of the GDS Statement of Financial Entitlements which allows the withholding of payments to recover monies due to a “breach of a condition attached to the payment”, PCTs have ignored contract law principles that, for example, compensation (clawback) for breaches should be limited to the level of PCTs foreseeable loss. But what loss? The majority (if not all) of the services (in the course of treatment) were provided. Therefore, the sample and the alleged inappropriate claims can be challenged, the percentage can be significantly reduced.
There are also times when issues can be identified as arising from and therefore should be limited to certain circumstances over a specified period of time. For example, identification of inappropriate claims by a temporary rogue locum performer should not be used to calculate a percentage for use beyond the period in which the locum was up to no good. Inappropriate claims arising from a faulty recall policy (the closure of courses of treatment and the opening of new courses too soon) should only apply to the period during which these errors were made.
Why did PCTs use this methodology to reach their claw back claims? Obviously, the real truth may only be found in analysing each and every claim, a colossal and expensive task. However, despite PCTs contractual GDS and PDS obligation to act ‘reasonably and in good faith’ some grossly inflated claims, causing much stress and anxiety to contractors, were often readily reduced to a small proportion of that originally claimed. Bullying behaviour, threats to apply the methodology to years further in the past, and suggestions that the contractor would have to pay the costs involved in a comprehensive analysis, have all been used to obtain ‘agreement’.
However, it was sometimes in the best interests of contractors to agree a percentage and use that to calculate a claw back claim. Why? Only the wrongdoer knows the true extent of his inappropriate claiming. The sample may have been a bad one. However, it may have been a good one. For a small minority, a proper analysis of claims could reveal a far worse problem and a larger clawback demand.
The rules, contractual terms and the law in these respects remain unchanged. It is likely that the new commissioners, largely staffed by ex-PCT personnel, will continue in a similar vein. At the time of writing there was no commissioning board policy in place covering this issue.
However, the recent NHSLA decisions in the cases of Somerset PCT and the Lympsham Practice (February 2013/17054) and an unpublished (but widely circulated) case decision from December 2012 look set to level the playing field a little.
In the latter case the PCT failed to properly identify the basis of its claim by reference to specific inappropriate claims and so was prohibited from continuing use of the NHS dispute resolution procedure. The PCT had the opportunity to properly serve a schedule of disputed claims if it wished to proceed. In the former case the NHSLA rejected the figures reached by extrapolation as uncertain and therefore lost its case. It was confirmed that the PCT should have demonstrated the actual (not estimated) overpayment.
Of course, the use of a methodology to extrapolate the results of a sample to calculate a global clawback figure will continue to be available to contractors and the commissioners by mutual agreement. However, whilst the NHSLA decisions may be subject to appeal or judicial review, for the moment it is clear that the commissioners will not be able to force such an approach unilaterally on contractors.