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The National Health Service (Optical Charges and Payments) Amendment (No. 2) Regulations 2008

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Insertion of regulations 19A to 19C into the Optical Regulations

This section has no associated Explanatory Memorandum

3.  At the end of Part V of the Optical Regulations (payments for cost of replacement or repair of optical appliances), add regulations 19A to 19C—

Notice as to cessation of payments

19A.  No payment shall be made in any of the circumstances set out in paragraph (2), where a notice has been served under paragraph (3) or (5), from the date specified in that notice.

(2) The circumstances mentioned in paragraph (1) are that—

(a)in the judgement of the responsible authority, the supplier is not a suitable person to receive public funds from the responsible authority;

(b)the supplier has failed to comply with conditions as to records or certificates as determined by the Secretary of State pursuant to section 180(11) (payments in respect of costs of optical appliances) in relation to the responsible authority; or

(c)the supplier or, if the supplier is a corporate body, any director, chief executive or secretary of it, or if the supplier is a partnership any partner in the supplier, has been removed from an ophthalmic list or a supplementary list on the grounds mentioned in section 49F(3) of the Act (disqualification in a fraud case)(1) or from an ophthalmic performers list under a provision corresponding to the section.

(3) Subject to paragraph (4), in a case to which paragraph (2)(a) applies, the Secretary of State may give notice under section 181(4) (section 180: supplementary) that no further payments in the area of the responsible authority may be made to that supplier from the date specified in the notice, which shall be a month after the date of that notice.

(4) In a case to which paragraph (3) applies, where the supplier has appealed under paragraph (7)(b), the payments may, if the Secretary of State so decides, continue to be made until the FHSAA decides to uphold that notice or to issue a stop order.

(5) Subject to paragraph (6), in a case to which paragraph (2)(b) or (c) applies, the Secretary of State shall give a notice to the supplier under section 181(4) that no further payments in the area of a responsible authority may be made to it from the date specified in the notice, which shall be the date of that notice.

(6) In a case to which paragraph (2)(b) applies, the Secretary of State may withdraw the notice, given under paragraph (5), if that supplier has, since the date of that notice, complied with the conditions mentioned in paragraph (2)(b).

(7) Subject to paragraph (9), in any case where notice has been given under either paragraph (3) or (5)—

(a)the Secretary of State may apply to the FHSAA for a stop order(2) in relation to that supplier and, if he does, he shall notify that supplier that he has so applied; and

(b)the supplier may appeal to the FHSAA, whether or not the Secretary of State applies for a stop order, provided it does so within 28 days of receipt of the notice.

(8) On appeal the FHSAA may make any decision that the Secretary of State could have made.

(9) In a case where—

(a)paragraph (2)(c) applies and notice has been given under paragraph (5); and

(b)that person is subject to a national disqualification, under section 159 (national disqualification) or provisions corresponding to that section,

the Secretary of State shall apply to the FHSAA for a stop order and notify the supplier of that application.

(10) A notice under paragraph (3) shall state—

(a)the reason why that supplier is judged not to be suitable;

(b)that the supplier has the right of appeal set out in paragraph (7)(b); and

(c)how to exercise that right.

(11) A notice under paragraph (5) shall state—

(a)in a case to which paragraph (2)(b) applies, what condition the supplier has failed to comply with; or

(b)in a case to which paragraph (2)(c) applies, the circumstances specified in that paragraph and the person to whom they apply, and

that the supplier has the right of appeal set out in paragraph (7)(b) and how to exercise that right.

(12) Except in a case where a stop order has been made by the FHSAA, a notice under paragraph (3) may be withdrawn at any time.

(13) In this regulation and in regulations 19B and 19C—

(a)the FHSAA means the Family Health Services Appeal Authority constituted under section 169 (FHSAA);

(b)“notify” means to notify in writing (including electronically) and “notice” shall be construed accordingly;

(c)“payment” means payment in accordance with regulation 13 or 18;

(d)any reference to a section, except where specified otherwise, is to a section of the National Health Service Act 2006(3), and

the use of the term “it” in relation to a supplier includes a reference to a supplier that is an individual or two or more individuals practising in partnership and related expressions shall be construed accordingly.

Reviews

19B.(1) The Secretary of State shall review a notice under regulation 19A(2)(a) if—

(a)the supplier so requests; and

(b)more than 2 years have elapsed since either the notice was given or the last such review, whichever is the later, and

if, in the judgement of the responsible body, that supplier is then a suitable person to receive public funds from it, the Secretary of State shall withdraw that notice.

(2) Where a notice has been issued under regulation 19A(2)(b) and the supplier considers that it has now complied with the condition specified in that notice, it may request the Secretary of State to review the notice and, if the Secretary of State is satisfied as a result of that review that it has so complied, he shall withdraw that notice.

(3) In any case where a review has been conducted under paragraph (2), that supplier may not request a further review until a period of 12 months has elapsed since the last such review.

(4) Where a notice has been issued under regulation 19A(2)(c) and—

(a)that person has since been restored to the list mentioned in that provision; or

(b)where that person was a director, chief executive or secretary of a corporate body and has ceased to be a director, chief executive or secretary of that corporate body,

the Secretary of State shall, if requested to do so by the supplier, review that notice and may, if he considers it appropriate, withdraw that notice.

(5) If, as a result of a review under paragraph (1), (2) or (4), the Secretary of State does not withdraw that notice, the supplier may appeal to the FHSAA, provided it does so within 28 days of receipt of the Secretary of State’s decision on that review.

Reviews of stop orders

19C(1) The FHSAA may, at the request of the supplier upon which a stop order has been imposed, review it and on such a review may confirm it or revoke it.

(2) Subject to paragraphs (3) and (4), the supplier may not request a review of a stop order before the end of the period of 2 years beginning with the date—

(a)on which the stop order was imposed; or

(b)of the FHSAA’s decision on the last such review,

whichever is the later.

(3) If, on making a decision to impose a stop order, the FHSAA states that it is of the opinion that there is no realistic prospect of a review or a further review, as the case may be, being successful if held within the period specified in paragraph (2), the reference to “2 years” shall be a reference to 5 years or such lesser period, being more than 2 years, as the FHSAA may determine.

(4) If, on a review, the FHSAA states that it is of the opinion that there is a realistic prospect of a review or a further review, as the case may be, being successful if held within a lesser period than that specified in paragraph (2), the reference to “2 years” shall be a reference to “one year.”.

(1)

Section 49F was inserted by the 2001 Act, s. 25 and amended by the 2002 Act, s. 2(5) and Schedule 2, paras 1 and 21(a) and the 2003 Act, s. 196 and Schedule 14, Part 4.

(2)

Provision for stop orders is made in s. 181(7) of the NHS Act 2006.

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