A number of important changes are imminent in relation to overseas visitor charges. Some of the changes come into effect from 21 August and others - including the introduction of upfront charging and the extension of the scheme to non-NHS providers - from 23 October 2017.
The changes are explained in the Department of Health's new guidance - 'Implementing the Overseas Visitor Charging Regulations' - which, from 21 August, will replace all previous guidance on this topic.
The headline points include:
- The extension of the existing charging provisions to non-NHS providers of NHS funded services;
- The compulsory recording of overseas visitor status against a patient's NHS number;
- The extension of the scheme to non-hospital services (but not primary care);
- And a new obligation to collect payment from non-exempt overseas visitors in advance of treatment being provided, except where this would prevent/delay immediately necessary or urgent treatment.
Below we look at the key changes and their impact in more detail.
Where we are currently
Legislation on charging overseas visitors for NHS hospital care has been with us, in various forms, for over 30 years, with the latest set of regulations issued in 2015.
The general rule is that people not 'ordinarily resident' in the UK have to pay for NHS hospital services, unless an exemption applies. Certain hospital services are exempt from charges, including A&E services, diagnosis/treatment of specified infectious diseases and treatment of conditions caused by torture, FGM or domestic/sexual violence. Certain categories of people are also exempt from charges, including asylum seekers/refugees, EEA nationals with a European Health Insurance Card, those entitled to free care under reciprocal healthcare agreements with non-EEA countries, and people who have paid the Health Surcharge when applying for their visa to come to the UK/extend their stay for 6 months or longer.
The current rules require NHS Trusts to establish whether a patient is an overseas visitor to whom charges apply and, if they are, to make and recover the relevant charge. There is no option or authority to waive the charge. However, applying the complex rules around who is and is not exempt from charges can be challenging, particularly in the context of a health system which does not usually involve money changing hands.
There has been a concerted national push in recent years to increase the amount of money recovered from people who are not entitled to free hospital care, especially since the introduction 3 years ago of the Department of Health's Overseas Visitor Costs Recovery Programme. However, a recent evaluation of progress made since the launch of that programme has shown wide variation between Trusts, with costs recovery rates varying between 15% and 100%. A particular weak point is getting bills paid once they are issued - hence the plan to introduce upfront charges (see below).
What is changing?
Highlights of the key changes to be introduced by the new NHS (Charges to Overseas Visitors) (Amendment) Regulations 2017 are:
From 21 August 2017:
- Recording overseas visitor status - There will be a new legal requirement on NHS Trusts to record against a person's NHS number (in practice, on their Summary Care Record), the fact they have been identified as an overseas visitor, whether or not they are exempt from charges and the date the assessment of their chargeable status took place.
- Services outside hospital - The current position is that services provided outside hospital are exempt from charges unless staff providing those services are employed by, or under the direction of, a hospital. This will change from 21 August, so that all secondary/community services provided by NHS Trusts will be chargeable to non-exempt overseas visitors (unless it is a service free to all, such as family planning).
From 23 October 2017:
- Charging obligations extended to non-NHS organisations - The existing legal obligation on NHS Trusts to establish whether a person is an overseas visitor to whom charges apply and then to make/recover those charges, will be extended to any non-NHS organisations providing NHS-funded services that are not primary care services. The Department of Health has indicated that more detailed guidance to assist non-NHS organisations with the mechanics of making and recovering overseas visitor charges will be available shortly.
- Upfront payments - NHS Trusts (and non-NHS organisations providing NHS-funded care, as above) will be under a statutory obligation to recover overseas visitor charges in full before providing the treatment, unless doing so would prevent/delay the provision of 'immediately necessary' or 'urgent' treatment. This means that treatment which clinicians deem can wait until the patient can reasonably be expected to return to their home country, must not be provided until the estimated cost of the treatment has been paid in full. Whilst this has been recommended best practice for several years, it will become a legal requirement from 23 October.
Impact?
All providers of NHS-funded services, both in hospital and in the community (other than primary care), will need to ensure they are ready to meet these new legal requirements.
One of the key challenges is likely to be achieving 'buy-in' from clinical staff who will have a key role in making the new rules work. In particular, it will be down to the treating clinical team to decide whether treatment is 'immediately necessary' (i.e. needed promptly to save life, prevent a condition becoming immediately life-threatening, or to prevent serious damage to the patient, plus all maternity services), or 'urgent' (i.e. not deemed immediately necessary, but nevertheless cannot wait until the patient can reasonably be expected to return home). Whilst this may seem relatively straightforward on paper, the reality is that decisions about whether treatment can wait until the patient can reasonably be expected to return home may not be clear-cut - e.g. for undocumented migrants where likely date of return may not be ascertainable.
It is also important to remember that, even when treatment is deemed 'immediately necessary' or 'urgent', this does not itself exempt the patient from being charged. It simply means that treatment should not be prevented or delayed in order to secure payment. If payment is not obtained before 'immediately necessary' or 'urgent' treatment is provided, every effort must still be made to recover it afterwards. The new provisions mean that the person will already have been identified as an overseas visitor.
A key question here is how - in practice - compliance with these new statutory provisions will be policed. It is likely that NHS Improvement will have a central role here in terms of monitoring the recording of overseas visitor status against NHS number and overseas visitor costs recovery, as part of its wider regulatory regime. Commissioners of NHS-funded services will also have a key role to play here, because they are not liable to pay for a treatment if the provider has not taken reasonable steps to recover overseas visitor charges.
Looking ahead to the future, we may see a re-surfacing of government proposals to extend overseas visitor charging to A&E, ambulance and some primary care services. Based on the negative response to the consultation the government ran on this last year, however, we are unlikely to see charges for these services being introduced any time soon.
The detail of the new Regulations will require careful scrutiny and amendment to internal policies and procedures, as they make numerous other changes including additional exempt services and exempt persons, provision for changes in circumstances during provision of a service, chargeable assisted conception services for certain groups, amendment to the refund provisions, and removal from exemption of those employed or engaged in work on ships.
How we can help
Our national healthcare regulatory team has specialist expertise in a broad range of legal and regulatory issues affecting NHS and independent sector providers of health and social care services, including advice relating to overseas visitors.
Specifically, we can provide advice on:
- The legal framework governing overseas visitor charges and applying this in individual cases;
- Disclosure issues associated with information about overseas visitors/immigration status;
- Implications of withholding treatment pending payment;
- Recovery of outstanding charges/debts owed for treatment of overseas visitors;
- Claims for reimbursement of monies paid out by patients for treatments obtained overseas.
If you need advice in relation to the issues discussed here, please contact Diane Hallatt on: +44 (0)113 251 4826 or dhallatt@dacbeachcroft.com.
