Abbreviations and acronyms

The following abbreviations and acronyms are used in this document:

• GDS – General Dental Service Contract
• PDS – Personal Dental Service Agreement
• PDS Plus – Personal Dental Service Plus Agreement
• SFE – Statement of Financial Entitlement
• UDAs – Units of Dental Activity
• UOAs – Units of Orthodontic Activity
• COT – Courses of Treatment
• NACV – Negotiated Annual Contract Value
• NAAV – Negotiated Annual Agreement Value
• AACV – Actual Annual Contract Value

Up to date definitions for these terms are contained within the:

• The General Dental Service Contract and Personal Dental Service Agreement
• The National Health Service (General Dental Services Contracts) Regulations
• The National Health Service (Personal Dental Services Agreements) Regulations
• The GDS/PDS Statement of Financial Entitlement Directions including amendments
• The Policy Book for Primary Dental Services and the Appendices

Introduction

Following the delegation of primary care commissioning functions to ICBs from 1 July 2022 and to all ICBs on 1 April 2023, commissioners are exploring opportunities to commission dental services to prevent poor oral health, protect and expand access and deliver high quality care. Meeting these ambitions will require all commissioners and providers of both dental public health activities and dental care and treatment activities to consider how best to deploy their available resources. From a national dental care and treatment perspective, the restoration of mandatory services following the pandemic remains a key delivery priority.

Whilst this focus on mandatory services is critical to restoring access to dental care for the majority of people, we also want to highlight to ICBs the flexibilities which exist within the current national dental contractual framework to enable them to tailor services to meet specific population needs, and to take steps to support practices with changes to UDA values, where this presents clear value for money.

The aim of this guidance is to provide ICBs with an outline of the legal requirements of the national dental contractual framework and to highlight the key considerations associated with procuring additional and further services, previously termed ‘flexible commissioning’. Since this concept was introduced in 2020/21, we have refined our national position regarding the legal framework and the boundaries of flexibility open to ICBs. As such, this guidance supersedes any previous guidance provided to commissioners.

This guidance is intended to support commissioners with the following opportunities:

• Additional investment into new or existing contracts to address areas of need including;
  • Increased contracting of mandatory services,
  • commissioning additional capacity for advanced nandatory services, sedation and domiciliary services and orthodontics,
  • commissioning additional capacity for dental public health services and/or further services.
• Reallocation of existing contractual funding away from mandatory Services into new priorities (commissioned as additional or further services);
• Local negotiation of indicative rates for units of dental activity (UDAs) or units of orthodontic activity (UOAs).

The contents of this guidance should be considered alongside the Policy Book for Primary Dental Services and the national dental contractual framework. Commissioners should continue to give due regard to national procurement guidance and organisational standing orders and standing financial instructions should also be observed when implementing any aspects of this guidance.

Services that can be commissioned under the GDS contract and PDS agreement

Three types of services are described in both the GDS and PDS Regulations: mandatory, additional and further services. Both mandatory and additional services are defined within the regulations. There is greater scope for commissioners to define the target population, required activity and associated remuneration of further services, including dental public health services, to meet the specific needs of their local populations which go beyond mandatory services.

Mandatory services

Mandatory services may be thought of as the core services which high street and community dental services should be able to provide. These are usually accessed by potential patients requesting care from an individual high street practice. The full list of mandatory services are defined in Regulation 14 of the GDS and PDS regulations and include:

• examination,
• diagnosis,
• advice and planning of treatment,
• preventative care and treatment,
• periodontal treatment,
• conservative treatment,
• surgical treatment,
• supply, and repair of dental appliances,
• the taking of radiographs,
• the supply of listed drugs and listed appliances,
• and the issue of prescriptions.

These activities are then grouped into banded courses of treatment which must be monitored and remunerated as units of dental activity (UDAs) in order to be compliant with the GDS/PDS Regulations and the GDS/PDS SFE.

Additional services

Additional services are defined in Schedule 1 of the GDS/PDS regulations. Additional services include advanced mandatory services, domiciliary services, sedation services and orthodontic services. Requirements for each of these services are provided in the regulations, although orthodontic services are usually commissioned separately. The primary scope for flexibility here is in determining the optimal level of commissioning and subsequent delivery of these services to meet local population needs. Additional services, like mandatory services, must be monitored and remunerated as set out in regulations, either through UDAs or orthodontic activity or as courses of treatment.

Dental public health services and further services

Dental Public Health Services and Further Services are the areas where commissioners have the greatest flexibility to define the target population, associated activities, and associated remuneration as these are not defined with the GDS/ PDS Regulations. The service specification needs to go beyond reasonable expectations for the provision of mandatory services and should not replicate regulatory definitions of either Mandatory or Additional Services. There are a number of ways this could be achieved, for example, through a focus on provision of care to a defined target population, specific access requirements e.g. holding of appointment slots for direct booking of patients seeking urgent care or through a requirement to provide care and treatment not otherwise defined in the GDS/ PDS Regulations such as the provision of additional reports for looked after children.

Commissioners are able to determine their own remuneration approaches for Further Services which could be entirely non-UDA based or take a hybrid approach where there is an overlap with Mandatory Services. For example, a Further Service could describe an outreach activity which would then lead to a Mandatory Service being provided. In these circumstances, there could be a discrete payment for the outreach activity with any associated care delivered because of that outreach being remunerated using UDAs and measured as Courses of Treatment.

Summary of GDS/PDS regulations and GDS/PDS SFE

The GDS Regulations and GDS SFE requirements are based around the provision and remuneration of UDAs as part of Mandatory Services. Mandatory Services must be included in a GDS contract, whilst they are an optional element of a PDS contract.  Additional and/or Further services may also be included. Unlike the GDS contract, the PDS Regulations allow for Additional/Further Services to be commissioned in a PDS agreement without the inclusion of Mandatory Services. The PDS SFE confirms that whilst the arrangements for remuneration are mostly determined locally, these must still comply with the definitions for Mandatory, Additional and Further Services in the PDS Regulations.

In addition to this, PDS agreements are time limited, unlike a GDS contract which is held in perpetuity. A contractor with a PDS agreement to provide Mandatory Services or mixed contract may currently apply to convert to a GDS contract, limited to the Mandatory element only, at least three months prior to the end of the PDS agreement.

PDS Plus agreements were developed in 2009 for procurements under the Dental Access Programme. These are regulated by the PDS Regulations and a contractor holding a PDS Plus agreement which is providing Mandatory Services, has the same right to transfer the mandatory service element only to a GDS contract in line with a PDS agreement.

Where Mandatory Services are included in the GDS contract or PDS agreement the commissioner should ensure these are defined in part 8 of the contract / agreement. Additional Services should be defined in Part 9 of the contract/agreement and Further Services should be defined in Part 10 of the contract/agreement. These definitions need to include the activities being commissioned, how they will be remunerated and how any non-compliance will be monitored and addressed. Where an Additional Service is defined in the Regulations, this definition needs to be adhered to.

Commissioners should note that the mechanisms for financial recovery described in both the GDS and PDS Regulations and the GDS / PDS SFE apply only to the delivery of UDAs delivered under Mandatory Services and UOAs delivered under Orthodontic services. As these are national contract arrangements commissioners are supported with the year-end reconciliation and management of these contracts. Local contract arrangements are not supported through these national processes and ICBs will therefore need to ensure that they have sufficient resources to enact any mechanisms for financial recovery for all other Additional and Further Services.

Commissioning additional and further services

Key considerations when making commissioning decisions regarding additional and further services

Legal responsibility for commissioning decisions rests with the ICB. In reaching these decisions, commissioners are encouraged to engage with Local Dental Network Chairs, Managed Clinical Network Chairs, Consultants in Dental Public Health, representatives of the profession and with the public as appropriate and necessary to discharge statutory duties.

Commissioners may be approached by contractors seeking to ‘flex’ a proportion of their contract. Any such request should be subject to the same considerations as an ICB initiated development and, if felt beneficial, should be opened to all eligible contractors.

When considering the commissioning of Additional or Further Services ICBs will want to consider the following points:

• Under section 13Q and section 14Z45 of the NHS Act 2006 commissioners have a statutory duty to ‘make arrangements’ to involve the public when making commissioning decisions that will affect services for NHS patients. Commissioners also have a responsibility to ensure that any services represent good value for money and are clinically effective. Further advice on this can be found in the Policy Book for Primary Dental Services.
• Commissioners are encouraged to work with Consultants in Dental Public Health and others as appropriate to undertake local needs assessment, service evaluation and seek engagement from service users to identify whether or not there is sufficient provision and/or appropriately placed Mandatory Services (including Community Dental Services), Advanced Mandatory Services, Domiciliary Services and Sedation Services necessary to meet local needs.
• Where the commissioner has determined that Additional or Further Services are required these must comply with the definitions in the Regulations and go beyond the reasonable expectations of Mandatory Services delivery as described above.
• Additional and Further Services may be funded in two ways: through local funds not already committed or through the redistribution of existing contract resources through an offsetting of existing UDAs. Where this latter approach is being considered commissioners must undertake an assessment of this on wider access to Mandatory Services. Examples of questions for the Commissioner to consider are included in Section 10.3 Impact assessment of the Policy Book for Primary Dental Services.
• When commissioning Additional or Further Services using local flexibility, commissioners should consider the risk of legal challenge at a local level and the impact that local programmes may have on wider national arrangements and contract reform packages. It is recommended that legal advice is sought as part of this process.
• Where Additional or Further Services are commissioned, the commissioner has a responsibility to ensure that these services represent good value for public money, is evidence-informed and clinically effective.
• To ensure access to dental care is not impacted, NHS England does not recommend that a UDA offset approach be used to commission Additional and Further Services which are not directly related to the provision of dental care and treatment or the support of oral health improvements, for example, opportunistic blood pressure testing. Commissioners are reminded that the provision of preventative advice is a Mandatory Service and that adherence to Delivering Better Oral Health is a contractual requirement.
• Opportunities to provide Additional or Further services should adhere to any relevant procurement and be available to all contractors in an ICB area who meet the eligibility criteria in order to ensure fairness and transparency.
• Robust processes that support all decision making should be in place which includes maintaining a thorough and accurate record of all communications, discussions, and actions undertaken.
• Performance management of Dental Public Health and locally defined Further Services and any associated financial recovery are not governed by the Regulations/SFE. Therefore, the Commissioner will need to determine their own mechanisms to monitor and measure performance. This also needs to describe the management of underperformance, including provision for financial recovery, within any contract variation.
• It is recommended that Additional or Further Services are commissioned on a time limited basis. This gives commissioners flexibility to ensure that services continue to meet the needs of the local population and that local contracts do not replicate any future nationally agreed changes to the GDS / PDS Regulations, SFE and GDS contract/PDS agreement. It also avoids any inadvertent permanent inclusion of the service in an ongoing GDS contract.
• A contract variation must be used to set out the mutually agreed terms and conditions by varying the appropriate clauses within the GDS contract/PDS agreement and must specify the date that the variation comes into effect.
• The commissioner must ensure that the relevant service lines on compass are amended to reflect the contract variation to ensure visibility of activity and support the reconciliation of the contract at year-end.
• Once the agreement is in place, the commissioner should inform patients and stakeholders, including Directory of Service (DOS leads) and NHS111 of the start date. Changes to services should be reflected on the nhs.uk practice profile to ensure accurate information is available to patients. This requirement should also be included within any locally developed service specification.

Examples of additional and further services

Below are some examples of the type of Additional and Further Services which can be commissioned in line with the GDS / PDS definitions and which do not replicate Mandatory Services.

Funding additional and further services

As noted above, Additional and Further Services may be funded in two ways: through local funds not already committed or through the redistribution of existing contract resources through an offsetting of existing UDAs. Previous guidance has advised that where a UDA offset approach is being used that this should be limited to no more than 10% of the associated contract value. NHS England is now of the view that the resulting debate as to whether this figure is the ‘correct’ one has acted as a distraction away from the more important question as to whether any proposed Further Service can be sufficiently differentiated from the regulatory definitions of Mandatory and Additional Services. Therefore, whilst we will continue to monitor the total quantum of Additional and Further Services commissioning, and we do not expect this to routinely exceed 10-20% if the additional to Mandatory Services test is being suitably applied, we are no longer advising this as a maximum threshold.

Where offsetting is used, the reduction of the UDAs and associated annual contract value must be agreed with the contractor. A separate payment, equating to the reduced value must then be made in relation to Additional or Further Services. It is strongly advised that this is separated onto a discrete compass service line to support monitoring. As shown below using an example where 10% of the contract value is being offset:

Where local funds are being used it remains vital that the Commissioner complies with any relevant procurement guidance and organisational standing orders and standing financial instructions (SFIs). If an additional investment is being made, a separate payment, using the appropriate compass service line, must be made in relation to Additional or Further Services. As shown below:

Regardless of whether the Commissioner is offsetting activity or using local funds, an assessment of Value for Money must be undertaken by the Commissioner. Examples of questions for the Commissioner to consider are included in section 10.3 Value for Money of the Policy Book for Primary Dental Services.

It is acknowledged that legacy arrangements dating back to 2006 may already have an element of non UDA activity for Additional Services or Further Services. The key considerations of offsetting UDAs or using local funds to commission extra Additional Services or Further Services will be the same as set out above.

Payment for over performance of Mandatory Services due to locally approved oral health and/or access programmes

The Primary Dental Services Statements of Financial Entitlements (Amendment) Directions 2018 provides the commissioner with the opportunity to make payment up to 104% of contracted UDAs to contractors with a GDS contract / PDS agreement where the contractor is participating in an oral health or access programme approved by the commissioner.

Commissioners have the local flexibility to define the scope of programmes which will improve oral health or increase access to dental services. However, commissioners should be aware that the SFE requires that oral health and / or access programmes reduce health inequalities, in line with the commissioners duty under section 13G of the 2006 Act.

Whilst oral health and access programmes are defined locally, commissioners should ensure that they still comply with the wider regulatory and contractual framework and the key considerations set out earlier in this guidance. Services provided under oral health and / or access programmes should be commissioned as an Additional Service (as Dental Public Health Services) or Further Service and must not deliver treatment that is already provided under Mandatory Services as described above. If a patient seen as part of the intervention, subsequently requires the provision of dental care this must be provided under Mandatory Services. Where a contractor delivers more than their contracted UDAs as a result of participating in a locally approved oral health and / or access programme then they may be funded up to 104% of their contracted activity.

Commissioners will need to ensure that any contract variation includes clear contract terms (including monitoring and recovery), and the service line is included within the Schedule 4 with separate payment terms. 

Supporting contractors with low indicative UDA values

Individual contractor indicative UDA values vary depending on location and legacy arrangements dating back to 2006. A minimum UDA value was established for the first time in 2022, however commissioners have an opportunity to go further to provide support to contractors that have lower indicative UDA values where this will deliver improved service provision.

Under the GDS Regulations Mandatory Services are monitored and remunerated using UDAs. Under the GDS SFE, remuneration of these UDAs is based on the Negotiated Annual Contract Value (NACV) and set out in schedule 4 of the contract. The PDS SFE confirms that the Negotiated Annual Agreement Value (NAAV), which is specific to PDS contracts is mostly determined locally, however under the PDS Regulations Mandatory Services would still be based around the provision UDAs and set out in schedule 4 of the agreement.

An increase in the indicative UDA value of a contract can be achieved through either:

• A reduction to the number of a contractor’s commissioned UDAs; or
• An increase to a contractor’s NACV / NAAV (contract value).

When considering whether to make adjustments to a contract, commissioners will want to consider the average value of the UDAs that are commissioned in an ICB area. They may also wish to seek further information from the contractor such as practice income and expenses including provider drawings to compare to local and national averages and to support them in determining whether there is a case to enter into a negotiation. Commissioners may also want to consider the points that were listed under the earlier section “Key considerations when making commissioning decisions regarding Additional and Further Services”. This may include reference but is not limited to meeting local needs, including the impact on surrounding practices, undertaking an assessment of value for money and an impact assessment. Commissioners should also consider the risk of legal challenge at a local level, and potential wider regional or national implications.

Where the commissioner decides to enter into a discussion with a contractor, the commissioner must offer the contractor, in writing, a meeting to discuss the NACV/NAAV. Commissioners may wish to consider a short term change, offered as a trial period subject to agreement by both parties, during which time the impact of the NACV/NAAV change can be monitored, so that the commissioner can make a more informed decision about whether to make the change permanent.

Once a new NACV/NAAV has been agreed with the contractor, the commissioner must ensure that the revised offer is put into writing. A contract variation must be used to set out the mutually agreed terms and conditions by varying the appropriate clauses within the GDS contract/PDS agreement and must specify the date that the variation comes into effect. The commissioner must also ensure that compass is updated to reflect any agreed change to the UDAs or the NACV/NAAV (contract value).

How to ensure that contractual paperwork reflects local agreements

The commissioner must ensure that any variation in relation to Additional and/or Further, or a change to the NACV/NAAV reflects the agreement with the contractor. Commissioners will need to ensure that they have sufficient resources to issue contractual paperwork which reflect local agreements and that they have ongoing resource to monitor local agreements.

Use of a contract variation supported by a service specification

A written contract variation must be used to set out the mutually agreed terms and conditions by varying the appropriate clauses within the GDS contract/PDS agreement and should be supported by a service specification where this is required. ThePolicy Book for Primary Dental Services includes a section on contract variations along with relevant appendices. Commissioners must not make payment, and the Contractor must not start services until the contract variation has been signed by both parties. The contract variation will need to reflect:

Effective date

The date that the variation comes into effect.

Inclusion of a duration (for Additional and Further Services)

Clause 17 of the contract makes provision for Commissioners to set a fixed duration for Additional Services. The Commissioner must also ensure that the contract variation includes a duration for each clause under part 10 when further services are commissioned.

Schedule 4 (payments)

The schedule 4 must make clear that there is a payment for UDAs and UOAs and any separate payments for Additional and / or Further Services.

When adjusting the NACV/NAAV the commissioner will need to either reduce the number of a contractor’s commissioned UDAs/UOAs; or increase the contractor’s NACV/NAAV.

The service lines on Compass must be updated to reflect schedule 4, including any change to the contracted UDAs to ensure visibility of activity.

Description of the service and contract management including managing underperformance (for Additional and Further Services)

Whilst it may not always be required, it is recommended that a service specification is used to provide full details of the service including approaches to the monitoring and measurement of performance of Additional and Further Services.

The Commissioner must set out all the contract management details for the service including the financial management of underperformance for Additional and Further Services.

Mandatory Services will continue to be monitored and assessed for under/over-delivery as described in the Regulations and SFE with financial recovery being enacted if delivery falls below 96% of that contracted.

Publication reference: PRN00548