Covid-19 crisis 'highlights need for English dental contract reform'

Out-Law News | 20 Jan 2021 | 11:53 am | 3 min. read

The imposition of activity targets for NHS dental practices in England raises questions about the future funding of the sector, an expert has said.

Health law expert Joanne Ellis of Pinsent Masons, the law firm behind Out-Law, said a House of Commons backbench debate on the impact of the Covid-19 pandemic on dental practices, and a recent change to require practices to meet activity targets to receive full payment, only touched “the tip of the iceberg” with regards to dental contracts.

“Over the last 10 years there have been many discussions around the need to reform contracts to make them more focused on prevention and oral care and less on churning through patients to meet activity targets,” Ellis said.

“The last year has been challenging for dental practices and their patients who have missed out on check-ups and urgent treatments, with a resulting decline in oral health. The government will have to decide whether activity targets are the best way to reward and encourage publicly funded dentistry during lockdown and in the future,” Ellis said.

“It is of vital importance that the industry feels that their concerns are being heard and that suitable measures can be put in place to alleviate them at this time,” Ellis said.

Prior to March 2020, dental practices had contracts which required them to perform a certain amount of dental work, measured in units of dental activity (UDAs). Dental contractors would be paid for their work proportionately to the amount performed, up to a maximum contract value.

When the coronavirus pandemic hit, the NHS paid dental contracts out in full, minus an amount to reflect the fact they would not have to purchase materials, to allow NHS practices to stay open, pay their dentists and staff, and did not require practices to perform UDAs.

On 22 December 2020, the NHS introduced new guidance (64 page / 547KB PDF). Under the revised contract terms, dental practices are required to perform 45% of their normal activity levels to maintain full contract payments. The new contractual framework operates on a sliding scale, so that performing 36% (80% of 45%) receives 80% of the contract value. Dentists performing less than 36% would only be paid for that work.

Holders of personal dental services contracts – those offering orthodontic services – will have to perform 70% of their targets to maintain full contract payments.

Ellis said: “Dental contractors should keep a close eye on their performance, and keep any evidence of why targets have not been met – such as patients not attending. They should then prepare representations to their local NHS if the NHS takes steps to reclaim money or terminate the dentists' contract. Although not explicitly stated, the effect of the latest guidance is that contractors failing to perform 37.8% of their UDA targets could be issued with a breach notice and potentially have their contracts terminated.”

In a House of Commons backbench debate on 14 January, Labour MP Fleur Anderson said the activity targets were unattainable, and better targeted financial support was needed to save the dental sector.

“We are sleepwalking into the biggest oral health crisis since the creation of the NHS. Unless the government begin to recognise that dentistry is an essential health service, the sector will collapse,” Anderson said.

MPs speaking in the debate said it would be difficult for many practices, particularly in rural areas, to meet the targets required.

“The imposition of severe penalties for not reaching these minimum targets will be untenable for many practices already struggling to meet additional costs due to Covid. Many will be at increased risk of closing for good,” said Labour MP Rachel Hopkins.

Jo Churchill, minister for health and social care, resisted calls to scrap activity targets but said: “The UDA introduced in 2006 does not work particularly effectively, but we cannot change that here and now.”

Churchill said longer-term changes were needed to address inequalities in dentistry.

“My personal view is that a transformation in dentistry is necessary, particularly if we are to address the challenges that the pandemic has highlighted and the inequalities, particularly around children’s oral health. I wish to see a change in the way we approach dentistry and oral health. I have asked officials and [NHS England] to ensure that high-quality preventive work is at the forefront of future provision and that a transformation in commissioning takes place,” Churchill said.

Health law expert Andrew Pay of Pinsent Masons contributed to this article