2. Programme
2
10.10am David Bennett, Chief Executive and Chair
11am Our monitoring and enforcement approach - Adam Cayley, Regional
Director
11.40am Ensuring the continuity of services - Stephen Hay, Managing Director of
Provider Regulation
12.20pm Lunch
1pm How does Monitor intend to safeguard choice, prevent anti-competitive
behaviour and facilitate integrated care? Catherine Davies, Executive
Director of Cooperation and Competition
1.40pm Assessing transactions - Martin Smith, Assessment Director (M&A)
2.10pm Developing an effective and fair payment system - Jason Mann, Interim
Director of Pricing
3.00pm How do you think our regulatory model needs to evolve to help you
provide better care? Panel session
3.30pm Close
5. 5
Executive Director of
Cooperation and
Competition
Catherine Davies
Executive Director of
Assessment
Miranda Carter
Managing Director of
Sector Development
Adrian Masters
Managing Director of
Provider Regulation
Stephen Hay
Executive Director of
Organisation
Transformation
Fiona Knight
Executive Director of
Strategic
Communications
Sue Meeson
Executive Director of
Legal Services
Kate Moore
Executive Director of
Patient & Clinical
Engagement
TBA
Monitor‟s Executive Team
Chief Executive &
Chair
David Bennett
8. New provider licence
• sets out range of conditions providers of NHS-
funded services must meet
• Monitor‟s key tool for carrying out functions
• all providers of NHS services required to hold
licence, unless exempt
• foundation trusts licensed now
• other eligible providers licensed from April 2014
9. Key licence conditions
Condition FT4 – NHS Foundation Trust
Governance Arrangements
Condition CoS 3 – Monitor Risk Rating
Condition CoS 6 – Co-operation in the
event of financial stress
11. Assesses how financially viable providers of
key NHS services are
Assesses whether FTs taking sufficient steps
to secure compliance with governance
condition
Compliance Framework/
Risk Assessment Framework
COS 3
and 6
FT 4
Helps Monitor assess whether there is RISK of licence breach:
• does Monitor need more information?
• should Monitor open formal investigation?
11
12. We will assess financial risk at
CRS providers prospectively
Forward
plan
Quarterly
financial
information
Material
financial
event
collect information from CRS providers and
calculate risk rating
update risk rating each quarter on year-to-date basis
recalculate financial risk to reflect material financial
event (e.g. large transactions, profit warnings)
12
13. 4-point Continuity of Services
risk rating
Medium risk
Monthly monitoring
Risk rating
4
2
1
3
High risk
Potential licence breach and
investigation
No evident risk
Quarterly monitoring
Regulatoryimplications
High risk
Potential licence breach and
investigation
1323/05/2013
14. Liquidity ratio
(days)
Weight
Can provider meet
immediate cash
requirements, e.g. paying
suppliers & salaries?
Definition
Capital service
capacity (times)
Working capital balance x 360
Annual operating
expenses
Revenue available for Debt
Service
Annual debt service
Metric
Risk rating derived in following way
Can provider meet
medium-term financing
requirements, e.g.
PDC dividends, interest
payments, debt payments
and PFI obligations?
1423/05/2013
15. Proposed approach on governance
(foundation trusts)
Governance rating
Regular governance reviews
Forward plan reviews
Corporate governance statement
Do we need
more
information?
Should we
open an
investigation?
1523/05/2013
16. We‟ll look at up to six key areas
CQC concerns
Access
3rd party reports
Staff & patient
trends
Financial risk
Outcomes
Warning notices or civil/ criminal actions
Meeting national standards
Meeting national standards
- including MRSA, C.Diff
e.g. Healthwatch, patient groups, auditors,
commissioners, HSE, ombudsman, coroners
e.g. friends & family test, staff turnover, staff
absenteeism
Poor financial planning/management
Sample triggersArea of focus
1623/05/2013
17. Rating indicates degree of concern and
any action we are taking
No evident concerns
Concern identified – need for further information
identified
Potential breach of governance condition identified -
investigation underway
Material governance issue – regulatory action
possible or under consideration
Breach of governance condition with formal action
taken by Monitor
Rating Description
1723/05/2013
18. Working with our partners
Regulatory teams have same regional structure as
Open dialogue with all other regulators and national
public sector bodies to identify risk - meet regularly
through the Quality Surveillance Group network
As Monitor and CQC approaches change we‟ll work
together to ensure they‟re complementary and
licence failures identified and addressed
23/05/2013
19. Position after consultation on
Risk Assessment Framework
23/05/2013
Approach towards large PFIs – appear structurally weaker but may
not be unstable:
– Likely to clarify our approach but not change basis of rating
Volumes of trusts falling into monthly monitoring:
– Estimate 15-20 trusts (similar number to now)
– Request subset of quarterly return
– May not be automatic
Requirement for 3 yearly governance reviews:
– Considering whether alternative ways for Monitor to gain assurance
21. Prioritisation
• consider benefits and costs of action
• then might consider formal, informal or no action
Act proportionately
• proportionate and reasonable
• balance need to deter poor/harmful conduct with need to
ensure continued provision of health care services to
patients
2123/05/2013
22. Enforcement steps
23/05/2013
Trigger
• Intelligence and information (RAF) – may suggest potential problem
Prioritise
• Benefit to patients
• Cost
Investigate
• Formalise and publicise our concern
• Consult with stakeholders
• Escalate provider and request information
23. Lines of investigation
• Patients
• Process
• Problem
• Plans
• People
• Performance
2323/05/2013
24. Enforcement steps
23/05/2013
Trigger
• Intelligence and information (RAF) – may suggest potential problem
Prioritise
• Benefit to patients
• Cost
Investigate
• Formalise and publicise our concern
• Consult with stakeholders
• Escalate provider and request information
Enforce
• Requirements or Undertakings to improve
25. Monitor‟s licence enforcement
powers
Discretionary requirements (S105)
Enforcement undertakings (S106)
Additional powers for foundation trusts
Licence revocation
(in exceptional circumstances)
2523/05/2013
26. Licence notices and challenges
exposed
23/05/2013
19 trusts (13%) in breach of one or more aspects of
licence:
– 13: corporate or quality governance issues
– 10: emergency care issues
– 15: financial issues
– 9: strategic planning issues
Number in breach remained steady in move to
new regime
27. Enforcement steps
23/05/2013
Trigger
• Intelligence and information (RAF) – may suggest potential problem
Prioritise
• Benefit to patients
• Cost
Investigate
• Formalise and publicise our concern
• Consult with stakeholders
• Escalate provider and request information
Enforce
• Requirements or Undertakings to improve
Monitor
response
• Track improvement
• Further action if licence notices not complied with
30. Clear need for a continuity of services
regime
23 May 2013 30
31. • Our primary objective is interests of health care users
• Some provider difficulties inevitable
• If turnaround isn‟t possible, Monitor must focus on
protecting services
• Critical decision factors:
• ability of provider to fix its own problems
• wider L.H.E issues
• major concerns about quality or clinical safety
23 May 2013 31
Objective of the Continuity of
Services regime
32. The licence conditions help us
achieve our objective
32
4) Ensure resources remain available to provide
CRS/LSS
3) Incentivise prudent financial management (to reduce
risk of failure)
2) Provide support to commissioners to protect
patients if failure occurs
1) Protect continuity of services in event of failure
33. Defining Commissioner Requested
Services & Location Specific Services
23 May 2013 33
• CRS subject to CoS regulation
• Need to be retained in event of provider
failure
• Commissioners should define them with
“regard” to our guidance
• LSS can‟t be provided elsewhere
• Formally defined when provider placed
into administration
• Likely to be subset of CRS
LSS
CRS
34. Transition from mandatory services to
CRS
Mandatory
services
„Grandfathered‟ to
CRS as transition
arrangement
Continuity of
Services conditions
apply to all
providers of CRS
Commissioners
use guidance to
designate services
as appropriate
23 May 2013 34
3 YEAR SUNSET CLAUSE
FT mandatory
services
LSS LSS
CRS
CRS
FT
mandatory
services
35. Commissioners designate services as
appropriate to their health economy
23/05/2013 35
“Rural
Area”
“Urban
Area”
Regulate & Protect
Choice
&
Plurality
CRS/LSS CRS/LSS
36. Key elements of CoS regime
23 May 2013 36
CRS CRS providers subject to CoS regime
CoS
Licence
regime
Risk Assessment Framework (RAF)
Contingency Planning Team (CPT)
Trust Special Administrators
Licence based obligations
Health Special Administrators
Enforcement s.105 and s.106 undertakings
37. Roles of Contingency Planning Team
& Trust Special Administrator
37
CPT
• Non-statutory appointment
• Work with local commissioners
to identify potential LSS
• Engagement of stakeholders
• Develop options for “next
steps”
• Options may include solvent
restructuring
TSA
• Statutory appointment
• Business as usual
• Define LSS
• Develop options for Trust
• Formal public consultation
38. The stages of the regime
Stage 1:
Normal
operations
Stage 3:
Provider
distress
Stage 4:
Provider
failure
Stage 5:
Solution
CPT and/or Special Administration regime last
resort and used sparingly
Stage 2:
Concern
39. TSA not an inevitable successor to
CPT
23 May 2013 39
CPT
Solvent
Restructuring
led by provider
and / or CCGs
TSA
DECISION
40. Appointment of TSA has implications for
Foundation Trust
Board would
be
suspended…
…but Exec
Directors
continue as
employees
TSA develops
plan for FT in
context of
L.H.E
TSA is
independent
of Monitor
Continued
Business as
usual
23 May 2013 40
41. What does TSA have to deliver?
23 May 2013 41
• LSS definition has key role
• Provides focus for commissioners
Solution
development
Business as usual
•Emphasis placed on „day to day‟ running
•Important TSA seen by staff, and is
credible and accessible
42. Key components of TSA delivery
23 May 2013 42
•Need to engage stakeholders throughout
•Helps ensure recommendations are
„bought into‟ by community
Stakeholder
engagement
•Monitor cannot direct the TSA
•We must ensure objective and duties of
TSA achieved
Monitor‟s role
Market testing
•Market testing helps identify potential
providers
•Leads to most efficient solution
43. CoS funding regime will be more
transparent & rules-based (i)
23 May 2013 43
Service reconfiguration in normal conditions or
‘concern’ stage
FTs and NHS trusts:
Loans and/or PDC
Other providers:
Shareholders / banks / etc.
44. CoS funding regime will be more
transparent & rules-based (ii)
23 May 2013 44
Contingency planning and solvent restructuring
Contingency Planning Team –
funded by Monitor
Deficit funding & solvent
restructuring -
Loans and/or PDC (NHS FTs)
Shareholders/banks etc
45. CoS funding regime will be more
transparent & rules-based (iii)
23 May 2013 45
Trust Special Administration and insolvent restructuring
Envisaged that eventually funded by
Monitor Risk Pool
In interim period,
• Special Administrator paid by Risk
Pool funded by DH
• TSA Solution Development Phase:
deficit funded by DH via PDC.
• TSA Implementation Phase funded by
loans &/or PDC
47. What the regime means for you (ii)
23 May 2013 47
Post intervention
Maintain BAU TSA not automatic
A solution will be
developed
Your Trust plays
its part in process
Pre intervention
Engage with us
Ensure that you fully understand your
business
Monitor‟s focus is on patients
48. How does Monitor intend
to safeguard
choice, prevent anti-
competitive behaviour
and facilitate integrated
care?Catherine Davies, Executive
Director Co-operation and
Competition
49. Who we are (1)
Co-operation & Competition Panel created in 2008
Advised DH and Monitor on application of Principles and
Rules to:
• 156 mergers
• 11 conduct cases
• 5 procurement cases
• 2 studies
Provided advice in relation to c.900 requests for informal
advice
49
50. Who we are (2)
Panel now integral part of Monitor and continues to advise
40 staff - Case Managers, Clinical
Staff, Economists, Lawyers, Admin
Set of tools to deliver better outcomes for patients - higher
quality, better value, innovation
50
51. What we do (1)
Protect and promote the interests of patients
• with a view to preventing anti-competitive behaviour against
interests of patients
Powers set by Parliament - we operate within context of
government policy
51
52. What we do (2)
Ensure competition operates fairly in interests of patients
and prevent anti-competitive behaviour in NHS
4 key areas:
• Provider licence
• Concurrent powers
• Procurement, patient choice and competition regs
• Mergers
52
53. Area of provider
activity
What applies Before Key point
Referring patients HSCA/licence PRCC Make info on choice available and
act fairly
Interactions with
providers of
similar services
HSCA/licence
CA98/TFEU
PRCC
CA98/TFEU
Do not agree to prevent, restrict or
distort competition
Decisions not to
provide or accept
services
HSCA/licence
CA98/TFEU
PRCC
CA98/TFEU
Conduct of one organisation that
prevents, restricts or distorts
competition, e.g. exploiting
incumbency advantage
Transactions EA02, policy
rules
PRCC OFT/CC likely to review to decide
whether substantial lessening of
competition; we advise on benefits
Integrated Care HSCA/licence PRCC Do not do anything that could
reasonably be regarded as
detrimental to Integrated Care
What we do (3)
53
54. How we do it (1)
Decide how to use our resources in most effective way
• Prioritisation criteria
Accessible and helpful
• Call or email us with queries
• We will invite you to events and attend your events
54
55. How we do it (2)
Open and transparent processes e.g. some typical steps:
• Decisions to accept cases
• Working papers
• Provisional and final decisions
Analyse effects of agreements or conduct using
cost/benefit analysis
Clinical input into decisions
55
56. What you need to do (1)
Read our draft guidance documents
Take compliance with competition rules seriously
• Does your Exec team and Board understand the rules?
• NHS Trusts have to self-certify when applying for licence
56
57. What you need to do (2)
Agreements/discussions with other providers?
• Same services, especially where choice exists (elective care)
Identify opportunities
• Competition allows successful organisation to build on success for
benefit of customers (patients)
Approach us if you are not sure when/how rules apply
57
58. Busting a few myths (1)
We don‟t have to choose between competition on the one
hand and co-operation and integration on the other
Competition rules don‟t prevent providers from working
together, sharing best practice and innovating
Competition doesn‟t lead to fragmentation of NHS
58
59. Busting a few myths (2)
Competition isn‟t the first step towards privatising NHS
Monitor won‟t force more competition on NHS
Patients do want choice
59
61. Rationale for transactions – what we
are told
Key elements
of strategic
rationale
Supporting
arguments
• Clinical scale /
safety
considerations
• Cost savings
• Estate
utilisation
• Transfer of
best practice
61
62. 0
5
10
15
20
25
1 2 3 4 5 6 7 8 9
31 TCS
transactions, 2 FT
acquisitions of
NHS trusts
Significanttransactions
2008/092007/082007/082006/07 2010/112009/10 2011/12 2012/13
Setting the context – transaction history
8 PCT Asset
transfers, 2 FT
acquisitions of NHS
trusts
62
63. Our current approach
Monitor’s role to risk
rate and approve
where required
• Review triggered by
thresholds
• Key risks
identified, considered and
addressed
• Integration properly
planned
Promote an effective process which secures:
Sustainable services Better governance
True integration Improved patient care
63
64. Indicative risk rating
23 May 2013 64
Financial Risk
Rating 5 4 3 2 1
Low
We would not expect a Board to
enter into transaction unless
satisfied it can mitigate the risks
Green
Governance
Risk Rating
High
Red
(Assessor case)
(Adjusted for
transaction risks)
65. How does transaction assessment
process fit with competition regime?
From July 2012, Health & Social Care Act confirmed
mergers involving an FT are subject to review under
Enterprise Act
65
1
OFT decides no
relevant merger
situation
Transaction
assessment
commences
66. How does transaction assessment
process fit with competition regime?
66
OFT review – finds no
realistic prospect of
significant lessening of
competition (SLC)
Transaction
assessment
commences
40 days
2
67. How does transaction assessment
process fit with competition regime?
67
OFT review – refers case
to Competition Commission
for investigation and report
Competition
Commission
merger enquiry
If positive
and
sufficient
information,
commence
Provisional
findings
Final
report
40 days Up to 24 weeks (can be extended)
3
70. Recent changes to Monitor‟s role on
transactions
• Transactions requiring approval:
• FT/FT; FT/NHST
• FT mergers, dissolutions and
separations
• Necessary Steps
• Majority governor approval
• Sufficient assurance there will be no
licence breach
• Legal Steps
Statutory
Monitor must
approve certain
transactions if
satisfied necessary
steps have been
undertaken
• Relevant conditions are CoS 3 and FT
Governance condition FT4
All transactions
Monitor can use its
licence oversight
powers to protect
patients‟ and public
interests
70
71. Recent changes to Monitor‟s role on
transactions
• No requirement to go through
Monitor‟s full assessment
process, treated as a significant
transaction
FT merger
assessment
requirement
repealed
• Monitor will no longer set limit
• SoS to publish guidance
• Expect Monitor to be informed of any
significant changes in NHS FT debt -
this may trigger review in some
cases
Prudential
Borrowing limit
removed
71
72. Review of approach
We recognise need to review our current approach to reflect
new role and experience to date
1. Should we be aiming to stop transactions with
unacceptable risk?
2. Is there a clearer way to indicate risks of the
transaction?
• Transaction Risk Rating
• RAG rating
72
73. Review of approach
3. What sort of financial analysis should we undertake to
evaluate financial risks?
• central case v downside case
• do we need to look out further than 1-2 years?
• need to look at downside in the core business
In addition we will review our process to ensure regulatory
burden is appropriate
• thresholds
• scope
73
75. Price setting role split between
NHS England & Monitor
23 May 2013
Monitor will lead on:
Pricing methodology
Regulated prices
Local modifications
Rules for local
pricing and non-tariff
pricing
NHS England will lead on:
Scope and design of
currencies
Variation rules to
National Tariff
currencies
Close working
and agreement
Prices influence commissioner and provider
behaviours by driving improvement in quality of
outcomes for patients at same or lower cost
New role has
potential to
bring significant
benefits to
patients
76. Last decade has seen trend towards
national prices
2003/06
~60 prices for
elective
surgery, expan
ding to all
elective care
2012/13
1300+ prices
for Acute
care
Future
Currencies
being
developed
mental
health, long
term
conditions….
Increasingly aware of issues with current approach:
1. Paying for activity may skew incentives
2. Cannot work across care setting
3. Reference cost data poor
4. Price-setting not transparent and prices volatile
Anecdotal evidence of increasing non-compliance to manage financial risk
locally
2003
Shift from block
contract to
nationally
mandated
prices
77. Capitation
payments
Pathway
payments
Capacity
payments
Adjustments for
patient-reported
outcomes
Payment per individual served by
provider whether they require
care or not
Single payment to cover entire
pathway of care, from diagnosis
to rehabilitation
Providers reimbursed on the
basis of capacity of services
rather than activity
Payments adjusted (or based on)
patient-reported improvements
and/or satisfaction
Spain
Netherlands
Sweden
USA
USA: rural
hospitals
Australia:
emergency care
Sweden: spinal
surgery
International reviews show many different
approaches used
78. Asked ourselves: “why are we
regulating prices?”
Providers Commissioners
Contract(s)
Patients
Weak incentives
Potential for conflicts of
interest
Potential for provider
and/ or commissioner
market power
Information
constraints
Complex
interdependencies
Two key
points
Not all reasons applicable to all health care services
Not unfamiliar economic problems
79. 79
Heart transplants
Single
provider
Single or multiple
commissioners
Knee replacement services
Provider 1 Single
commissioner
Provider 2
Provider 3
Patients need different types of care, which
may require different payment approaches
Relatively
standardised
Clinical consensus
High volumes
(c50,000 pa)
Lots of providers
Outcomes can be
measured
Highly complex
Low volumes (121
patients in 2009)
Maximum number of
providers nationally low
(7)…
….to satisfy minimum
safe clinical activity levels
80. Regulatory toolkit for pricing
80
Price single units
of activity (as
under PbR) with
enforcement
rules
Improving
Cost and
Quality
Information
Setting
Mandatory
Prices
Constraining
Prices &
Contracts
Setting
Reference
Prices &
Contracts
Assessing
Value for
Money
Collect good
quality data
and
disseminate
to help sector
with
contracting
LESS
INTERVENTIONIST
Determining
Allowed
Revenues
MORE
INTERVENTIONIST
Arbitrating
where Local
Pricing fails
Undertake
assessments of
efficiency and
quality to help
inform
contracting
Calculate and
publish “efficient”
prices and provide
model contracts
Set min and
max prices to
for contracting
(e.g. to prevent
race to bottom
on quality)
Rules for provider /
commissioner negotiation
and mechanisms for
arbitration if process breaks
down
Set revenues
for capacity or
currency
bundles (e.g.
capitation)
81. Our initial view: 3 broad divisions in
types of service
81
Scheduled
vs urgent
Scheduled services more consistent with exercising choice
Payment mechanisms for urgent services might need to
consider “capacity issues”
Complex vs
simple
Complex services likely to have significant interdependencies…
….and low maximum number of providers
Reactive vs
proactive
Payment mechanisms to incentivise managing health issues
proactively likely to differ from payment mechanisms that react
to health care problems
1
2
3
82. 3 key building blocks for tariff setting
82
Cost and quality
data
Compliance
Price-setting
process
Help
providers, commissioners
and patients make better
choices
Inform our pricing
Proportionate enforcement
Allow innovation
Educate and build
Enable providers and
commissions to enter into
longer term decision making
Proper checks and balances
PLICS
PROMS
Provider accreditation
Set clear expectations
Gather insights from local
implementation
Evidence-based decisions
Predictable pricing
Robust methodology
Reduce time lags
Block Principles Implementation
1
2
3
83. How you can help
83
Data, data, data… Begun move toward PLICS (more volunteers wanted!)…
…needs recognition of importance at senior level in providers
Emergency care Emergency care an immediate area we are reviewing...
…call for evidence issued this week
Discussion paper
on payment
system
How can the NHS payment system do more for patients? Published this
week…
…start of 12 month engagement on long term strategy for pricing
Consulting on
2014/15 tariff
New institutional and legal framework means new timetable for setting
prices…
…aim to consult on tariffs in autumn ahead of final tariffs published in
December
Informally engaging with sector in June on key issues for this year…
…feedback at an early stage appreciated
Editor's Notes
FT4 - Licensee shall apply principles, systems and standards of good corporate governance reasonably regarded as appropriate for supplier of NHS health care servicesCOS 3 - Adopt and apply systems and standards of corporate governance and financial management:COS 6 – Where Monitor has formal concerns about ability of Licensee to carry on as going concern
(consulted - Compliance Framework remains place until 31 September)
Rating derived from short- and medium-term indicators of financial sustainability
Monitor proposes using a series of inputs to trigger possible consideration of a breach
Regional teamsOur new regional structure matches that of the CQC, NHSCB and NTDA for better coordination.This new structure will lead to greater understanding of local health economies:We’ll have a better insight into regional trends in healthcare, local health economies and do more pre-empting rather than reacting.We hope this means less overlap and more clarity for youIf you have a new relationship manager we’ll ensure you meet them asapWorking together for patients The roles of the Care Quality Commission, Monitor, NICE, the NHS Commissioning Board and the NHS Trust Development Authority may be different, but ultimately our goal is the same: to make sure people get the best possible care and service from the NHS and within social care settings.The CQC will drive improvement in the quality of health services. Its judgements will play an important part in decisions made by the NHS Commissioning Board and local commissioners on which services to buy and protect, and in Monitor’s decisions on whether a foundation trust is well run on behalf of patients. In addition, Monitor will only license providers which are registered with the CQC. Monitor will help drive improvement in the quality of health services by creating incentives which encourage commissioners and providers to work together effectively and deliver better care for patients. We will work closely with the Care Quality Commission and the NHS Commissioning Board in doing this.Monitor and the NHS Commissioning Board will also work together to ensure that the prices paid to providers of NHS services are designed in a way which drives improvements in quality and encourages them to deliver integrated services where that’s best for patients. The NHS Commissioning Board will set guidelines for local commissioners to ensure that a choice of NHS services is available to people where possible. Monitor will ensure that providers of NHS services give people the information they need to make their own choices about which service to use. Where Commissioners decide to make use of competition to increase quality and choice, Monitor will ensure that it operates fairly and in patients’ interests.Monitor’s ground rules for providers will ensure they use the resources for healthcare as effectively and efficiently as possible. NICE’s guidance and advice will also help commissioners and providers to do this by providing an evidence base for investment and disinvestment. The NHS Trust Development Authority will drive improvements in the quality and efficiency of NHS trusts, using rules which are consistent with Monitor’s rules for foundation trusts and other providers.
GRAPHSmall proportion of the sectorWe are worried about the curve moving rightTwo years ago, there was little Monitor could do to resolve the problems (de-authorisation was the ultimate power)Previously:Failure mechanism for FTs did not exist prior to November 2012Recent solutions have tended to rely on bailoutsThere was little transparencyThe situation had to changeTight financial environmentPricing and competition incentivesThe continuity of services regime now provides us with an appropriate mechanism
Monitor can work with you on turnaround solutions. If this isn’t possible (and we have criteria to assess whether this is possible), we will then focus on protecting services.This may lead to deployment of a CPT/TSA
Commissioners hold primary responsibility for continuity of services through 1. their commissioning strategy; and 2.designation of Commissioner Requested Services (CRS) and Location Specific Services (LSS)
We are establishing a framework which:Enables commissioners to define the right amount of CRS/LSS services for their local health economy…… but also is flexible to changes in the way healthcare services are provided
CoS regime protects services not providers, to ensure that patients can access services in event of provider failure. Replaces system of ‘hidden bailouts’, giving greater incentives for providers to maintain financial sustainability. Move from licence obligations through Enforcement undertakings to possible CPT and TSA stage. All aspects of the regime applicable to FTs and Independents with exception of TSA and HSA which is for FTs and Independents respectively.
Want to emphasise the importance of effective clinical engagement in both CPT and TSA – fundamental to successful delivery
Normal operations CCGs review CRSMonitor undertakes normal regulatory functionsFailure planningIdentify provisional LSSIdentify turnaround optionsFailureFormal identification of Location Specific ServicesBusiness as usual until solution implemented. TSA/HSA is independent
TSA not inevitable where CPT reports that a solvent restructuring is possible.Benefits of TSA:Speed of processWhere provider Board faces significant difficulties in delivering sustainable solution
Want to finish by summarising key messages:1. Focus of the CoS regime is very much on the left hand side of this graph.
[Key messages – continued]2. Adam has set out how we will work with you to tackle problems early and prevent the need for CPTs / TSAs – which should be very much a last resort3. But our primary duty is to patients, and so we will intervene if necessary through CPT.4. CPT does not lead inevitably to TSA 5. Where TSA is required, 2 key aspects: maintaining BAU and developing solution – Trusts, their clinicians and managers have a crucial role in delivering both.
I would like to start by looking at the rationale for consolidation - why are FTs looking to consolidate?we see one health specific reason, and a number of reasons which are common across many industries.the health specific reason is that it facilitates building critical mass in specialities – with the prospect of improved outcomes for patients.The ability to articulate this benefit to patients in a clear and powerful way will be very important in determining the success of any transaction.Other reasons frequently cited – and seen in other industries in the private sector:cost savings – for example economies of scale in back office/finance/pathology. And also in management teams and Boards if one is combining two trusts.estate utilisation – with activity potentially moving out of acute settings, there is likely to be potential for estate rationalisation. This could also help resolve challenging PFI situation where there is limited flexibility to change the estatetransfer of best practice – either clinical, managerial or at board level. There remains a lot of variation in the NHS and transfer of best practice can lead to both higher quality and productivity. But one has to manage cultural issues and ensure that bad does not drive out good.So there definitely are some potential benefits – but it is worth bearing in mind that in the private sector, M&A is not always successful and there are plenty of examples of shareholder value being destroyed by acquisitions. The key will be to do the transaction for the right reasons, fully understand the risks to execution and fully mitigate these risks where possible.
DATA: 12 for 12/13 – Yorks/Scarbs; SWAST; Lancashire care + 8 PCT asset tfersThis slide sets out the history of transactions in the FT sector.Historically, most trusts delivered service developments and CIPs on a stand alone basis. Until the TCS transactions in 2010/11 and 2011/12 we had only seen 4 significant (i.e greater than 25%) transactions at Monitor.We have seen an increase over the last three years mainly driven by the TCS transactions and PCT Asset transfers but we are also beginning to see more transactions driven by solutions for NHS Trusts that are unable to make FT status on a stand alone basis For example: Medway and Dartford and Northumbria and North Cumbria.Going forward we expect a further increase in transactions activity, as trusts seek to meet the efficiency challenge through service redesign rather than continuing to salami slice existing costs.Over the next six months we expect to see further acquisitions of NHS Trusts unable to make FT status and transactions as a result of the failure of provider organisations eg Kings acquisition of Princess Royal as part of the TSA of South London Health Care.We also await the outcome of the competition commission review into the proposed Bournemouth and Poole merger.
So if we look specifically at the output of our review – the financial and governance risk ratingsFRR - is based on the Assessor case in the first full year following the transactionGRR - Based on current FT rating plus risks identified from the transaction – for example:Impact of downside case if results in deficitsConcerns on level of due diligenceCapacity concernsWe would not expect FT to enter into transaction unless it satisfied can mitigate any significant risks identified during our review.
The next few slides set out three potential situations where the competition regime interacts with Monitors assessment process.FirstlyIf the OFT is satisfied that the potential transaction is not a relevant merger situation So if target turnover is less than £70million andThe OFT is happy that the enlarged entity will have less than 25% market share of the relevant marketthen the assessment process would be able to commence immediately.
An alternative scenario would be that the OFT does commence a review, which can last up to 40 days, and that, at the end of this period, finds no prospect of a significant lessening of competition. In that event Monitor would start its assessment process following the OFT decision.
However, if the OFT decides to refer the case to the competition commission, the transaction timetable will be significantly drawn out. The competition commission have 24 weeks in which to publish their final report - which can be extended in certain circumstances.We are keen to streamline the regulatory burden where possible so would consider commencing our assessment process at the provisional finding stage, normally 2/3 of the way through the process, so long as the findings were positive and that the planning process was sufficiently advanced to make it worthwhile commencing a review.
We thought it would be worth touching on a few myths regarding our approach:Firstly that Monitor’s requirements are too risk averseWe would say that this is not the case – the transaction requirements are based on the UK Listing Rules where appropriate, mirroring the burden in the private sector.However, the compliance framework also gives trusts the ability to apply for an investment adjustment, either relating to finances or governance issues.This recognises that there may be costs to delivering sustainable services in the future or that time will be needed to turn around a target’s poor performance. A second myth appears to be that Monitor’s approach may stifle innovationAgain, this is absolutely not the case, we would positively encourage new models of care that bring sustainable benefits to patients.We would encourage early engagement with Monitor in these situations so we can work with you to agree the best approach in these situationsExpect to see further integration - for example with social care
From 1 April Monitor has a statutory obligation to approve certain transactionsFT to FT mergers and acquisitionsFT acquisitions of NHS TrustsAnd FT separations and dissolutionsWe must approve these transactions if we are satisfied that the necessary steps have been taken to prepare for the transactionHowever, Monitor expects to use its licence oversight powers for all transactions to ensure that the interests of patients and the public are protected. We will be able to review compliance with CoS3 – around provision of sustainable services and FT Governance condition 4.
Other changes include the repeal of the requirement to assess a merger as a new applicantOn debt levels, we expect that the majority of debt increases may be subject to a major transaction and therefore we would review this as part of our transaction approach, where it doesn’t but it represents a significant increase in the debt we may be asked to do a review prior to release of funds
As I said, Monitor now has a statutory role in approving statutory transactions and from 1 April Monitor can use its powers to intervene in Transactions where appropriate. In light of this new role and in consideration of experience to date we need to review our approach to ensure that we use our new powers appropriately.Question 1Under our powers in the licence we could prevent a transaction from going ahead if there is an unacceptable risk to the sustainability of quality services for patients. This is on the basis that it would be a significant governance failure under FT4 or Continuity of Services failure under CoS 3 and that to proceed with a transaction would present an unacceptable risks to patients. Question 2We think there could be a clearer way to describe our view of risk by issuing a Transaction Risk Rating rather than a separate FRR and GRRThis rating could be based on a balanced assessment of the risks coveringCapacity of the enlarged organisationquality of due diligence quality of the Integration planand importantly the risks associated with patient care and quality and sustainability through a review of the financial risks of the combined entity. This could result in RAG rating where:Green no issues – transaction proceedsAmber concerns identified – transaction can proceed, Board assured risks can be managedRed – cannot proceed in current form
Question 3To assess transactions M&A we currently use the assessor case to give the FRR, then a downside is applied to the target and if this gives deficits after mitigations then this impacts the GRR.We need to ask ourselves whether this is the right approach. We may wish to look at an assessor and downside case on both acquirer and target and using the analysis under both cases to determine the overall level of financial risk. This would mean creating a bar similar to the assessment criteria and also consistent with how we assessed Tier 2 requests under the PBL.In addition, for PFI reviews we have historically issued a FRR for the first two years after opening, is this right ? For longer lived projects do we need to look further out? Ie to cover the risk that the first two years after a period of high efficiency requirements could give a negative position but this could turn around quickly.ConclusionAs part of our review we will also consider if regulatory burden is appropriate and proportionate to the risks identified, this may mean looking at whether we can reduce the scope of work in areas of lower risk. Factors that could be taken into consideration would be relative strength of the acquirer, type of business being acquired and risk in the target business.
2 key points:Not all reasons applicable to all health care servicesNot unfamiliar economic problems
Need to decide how interventionist to be within our choice of regulatory tools…. noting that few, if any, UK regulators have attempted to set 1000s of prices.One size fits all is unlikely to work for the entirety of the sector
