The NHS Commissioning Board (NHSCB) has rejected claims that its plans to support NHS commissioning support organisations contravene European law.
The organisation says the European legislation does not apply until after April 2013, the date when clinical commissioning groups (CCGs) become responsible for commissioning many of the services required by patients.
A Financial Times article reported healthcare lawyers expressing the opinion that proposed early phase assistance for NHS commissioning support service (CSS) organisations to be provided by the NHSBC will break European rules designed to ensure fair competition.
The organisations are being established to provide back-office services to CCGs after the health reforms come into effect. These services are likely to include assisting with information technology, producing health needs assessments, service redesign, procurement, and analysing business and patient data, among others.
NHS CSSs will operate as break-even businesses providing chargeable services to CCGs and other customers, with any profits reinvested in the development of their business.
In order to obtain staff and skills required to support clinical commissioning, commissioning service providers are expected to recruit personnel from the primary care trusts (PCTs), which are due to close in April 2013.
The Financial Times article also suggested private healthcare consultancies interested in bidding for contracts had been angered by an NHSCB document saying the board could 'host' new NHS commissioning support service (CSS) organisations for up to two to three years. This, they said, amounted to the board 'favouring its own', according to the newspaper.
The NHSCB guidance document Towards service excellence says 'we have secured up to an additional three years NHS hosting by the NHSCB' with the aim of ensuring NHS staff have sufficient time to develop effective and sustainable services.
However, in apparent contradiction of Towards service excellence, an NHSCB spokesperson told Wellards the CCGs would procure commissioning support according to EU procurement laws from April 2013. However, these rules do not apply before that time because CCGs will be constituted as formal sub-committees of PCTs.
During the transition period 2012/13, CCGs are expected to agree service level agreements with NHS CSSs, and in some cases PCT clusters will procure commissioning support on behalf of CCGs.
The spokesperson added that Towards service excellence makes clear that NHS CSSs will compete alongside other potential providers from April 2013.