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The National Health Service (General Medical Services Contracts) (Wales) Regulations 2004

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Temporary opt outs and permanent opt outs following temporary opt outs

2.—(1) As soon as is reasonably practicable and in any event within the period of 7 days beginning with the date of receipt of a temporary opt out notice under paragraph 1(5), the Local Health Board shall —

(a)approve the opt out notice and specify in accordance with sub-paragraphs (3) and (4) the date on which the temporary opt out is to commence and the date that it is to come to an end (“the end date”); or

(b)reject the opt out notice in accordance with sub-paragraph (2),

and shall notify the contractor of its decision as soon as possible, including reasons for its decision.

(2) A Local Health Board may reject the opt out notice on the ground that the contractor—

(a)is providing additional services to patients other than its own registered patients or enhanced services; or

(b)has no reasonable need temporarily to opt out having regard to its ability to deliver the additional service.

(3) The date specified by the Local Health Board for the commencement of the temporary opt out shall wherever reasonably practicable be the date requested by the contractor in its opt out notice.

(4) Before determining the end date, the Local Health Board shall make reasonable efforts to reach agreement with the contractor.

(5) Where the Local Health Board approves an opt out notice, the contractor’s obligation to provide the additional service specified in the notice shall be suspended from the date specified by the Local Health Board in it’s decision under sub-paragraph (1), and shall remain suspended until the end date unless —

(a)the contractor and the Local Health Board agree in writing an earlier date, in which case the suspension shall come to an end on the earlier date agreed;

(b)the Local Health Board specifies a later date under sub-paragraph (6), in which case the suspension shall end on the later date specified;

(c)sub-paragraph (7) applies and the contractor refers the matter to the NHS dispute resolution procedure or the court, in which case the suspension shall end —

(i)where the outcome of the dispute is to uphold the decision of the Local Health Board, on the day after the date of the decision of the Assembly or the court,

(ii)where the outcome of the dispute is to overturn the decision of the Local Health Board, 28 days after the decision of the Assembly or the court, or

(iii)where the contractor ceases to pursue the NHS dispute resolution procedure or court proceedings, on the day after the date that the contractor withdraws its claim or the procedure is or proceedings are otherwise terminated by the Assembly or the court;

(d)sub-paragraph (9) applies and —

(i)the Local Health Board refuses the contractor’s request for a permanent opt out within the period of 28 days ending with the end date, in which case the suspension shall come to an end 28 days after the end date;

(ii)the Local Health Board refuses the contractor’s request for a permanent opt out after the end date, in which case the suspension shall come to an end 28 days after the date of service of the notice; or

(iii)the Local Health Board notifies the contractor after the end date that the Assembly has not approved its proposed decision to refuse the contractor’s request to permanently opt out under sub-paragraph (14), in which case the suspension shall come to an end 28 days after the date of service of the notice under this paragraph.

(6) Before the end date, a Local Health Board may, in exceptional circumstances and with the agreement of the contractor, notify the contractor in writing of a later date on which the temporary opt out is to come to an end, being a date no more than six months later than the end date.

(7) Where the Local Health Board considers that —

(a)the contractor will be unable to satisfactorily provide the additional service at the end of the temporary opt out; and

(b)it would not be appropriate to exercise its discretion under sub-paragraph (6) to specify a later date on which the temporary opt out is to come to an end or the contractor does not agree to a later date,

the Local Health Board may notify the contractor in writing at least 28 days before the end date that a permanent opt out shall follow a temporary opt out.

(8) Where a Local Health Board notifies the contractor under sub-paragraph (7) that a permanent opt out shall follow a temporary opt out, the permanent opt out shall take effect immediately after the end of the temporary opt out.

(9) A contractor who has temporarily opted out may, at least three months prior to the end date, notify the relevant Local Health Board in writing that it wishes to permanently opt out of the additional service in question.

(10) Where the contractor has notified the Local Health Board under sub-paragraph (9) that it wishes to permanently opt out, the temporary opt out shall be followed by a permanent opt out beginning on the day after the end date unless the Local Health Board refuses the contractor’s request to permanently opt out by giving a notice in writing to the contractor to this effect.

(11) A Local Health Board may only give a notice under sub-paragraph (10) with the approval of the Assembly.

(12) Where a Local Health Board seeks the approval of the Assembly to a proposed decision to refuse a permanent opt out, it shall notify the contractor of having done so.

(13) If the Assembly has not reached a decision as to whether or not to approve the Local Health Board’s proposed decision to refuse a permanent opt out before the end date, the contractor’s obligation to provide the additional service shall remain suspended until the date specified in sub-paragraph (5)(d)(ii) or (iii) (whichever is applicable).

(14) Where after the end date the Assembly notifies the Local Health Board that it does not approve the Local Health Board’s proposed decision to refuse a permanent opt out, the Local Health Board shall notify the contractor in writing of this fact as soon as is reasonably practicable.

(15) A temporary opt out or permanent opt out commences, and a temporary opt out ends, at 08.00 on the relevant day unless —

(a)the day is a Saturday, Sunday, Good Friday, Christmas Day, or a bank holiday, in which case the opt out shall take effect on the next working day at 08.00; or

(b)the Local Health Board and the contractor agree a different day or time.

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