The BDA is urging all NHS providers to check if they are on target to fulfil contracts, especially if they have carried forward activity due to issues with the Performers list.
Due to issues with Capita, many NHS providers in England underperformed in the 2016/17 contractual year. Providers experienced delays in getting performers attached to NHS contracts, or in being able to engage performers to do activity, due to these delays.
Many NHS providers made an agreement with their local area team that they could carry forward the underperformance into the current contractual year (2017/18). We are concerned that this could become an issue for providers, if they are unable to catch-up in this current year, and that providers may face clawback, together with a breach notice.
If you believe you are going to underperform by year-end, you should raise this with your local area team now, as part of, or alongside, your mid-year review process.
We encourage providers to write to their local areas teams, asking for a variation to the contract for this contractual year, so that the year-end target will be achievable, and any balance can be carried forward into the 2018/19 contractual year.
Providers should make clear that they do not want to risk breaching their contracts.
Where NHS England's local area teams fail to engage, or refuse a variation, we suggest providers make a referral immediately to NHS Resolution (formerly the NHS Litigation Authority) asking for a declaration that their contract should be varied.