March 25, 2020
This fact-sheet summarises the position as at 24th March 2020. It is an ever-changing situation and it may be by the time you see this, the position has changed again. However, the healthcare team at Prosperity Law are keeping abreast of developments as they happen.
1. There is a lot of uncertainty about the safety of patients and dental professionals. Many patients are staying away and cancelling appointments, even if showing no symptoms and this is having a massive impact on dentists, both in the private and NHS sectors.
2. With there being much uncertainty about how or if, the virus is mutating, it is impossible to know exactly what precautions dentists who are continuing to see patients, should put in place to protect themselves from exposure to the virus.
3. As to why the Government’s measures have not yet extended to dentistry, is unknown. All we do know is that steps have been taken to protect the employees of practices but not the businesses themselves. With the demands being placed on the hospitals, it is already the case that some dentists are being deployed as front-line staff to deal with the rising number of cases that are being admitted. Clearly, this will have a material impact for the profession.
The UDA System
1. As you are aware, NHS dentists are remunerated in advance and are expected to perform 1/12 of the annual contract value each month between 1st April and the following 31st March.
2. The GDS contract does include “force majeure” provisions within it and if it appears likely (as may be the case with a large number of NHS practices), that you will fall well short of your 96% target, you should inform the Area Team as soon as this becomes apparent.
3. COVID-19 is an incident that is totally outside the contracting parties’ control. If patients do not attend for appointments or staff and/or practitioners become infected with the virus, it is likely that the target for the year will not be achieved, due to circumstances beyond either party’s control.
4. It is mooted that the current NHS year, which is due to close on 31st March 2020 could be extended to 31st March 20201, to allow for the UDAs that the practices could not perform to be achieved. Naturally, if NHS England agree to this, there would need to be reduced contracts going forward and potentially no or highly reduced clawbacks. Furthermore, there should be no breach notices served.
Actions to take
1. The CQC have today said that “there is no need for practices to notify CQC if they reduce their services to emergency dental care as many are doing at present. CQC understand the rationale behind practices making this change. A notification would create an unnecessary burden for providers and the CQC.”
2. If you decide to close for more than 1 day you are obliged to notify the CQC and the NHS Area Team in order to avoid a breach of your GDS contract. You should also tell your patients in advance rather than them attending for an appointment to find that the doors are shut.
3. It would also be prudent to contact your indemnity provider or insurer to find out what the position is in the light of COVID-19.
4. If you do decide to close, you should consult with your staff. It may be a temporary closure, or it may be that you wish to offer your staff reduced hours at lower rates of pay. You cannot do this unilaterally as you could be in breach of contract.
How will this affect the sales and purchase market?
1. In principle, it should not. The feeling is that the corporate dental organisatons are taking stock of the situation and are either slowing down ongoing transactions or biding their time with regard to new acquisitions. This, therefore, represents a great opportunity for associates who want to become practice owners.
2. The market which is currently a “sellers’ market” will become a “buyers’ market”. Practices that are 100% NHS, should, if the NHS do put measures in place to secure dentists’ income, still be saleable as before. Private practices, which rely on patients under plans or those who pay on a fee per item basis, may notice a decrease in their income.
3. This is likely to have an impact on sale prices and that leads to opportunities that those associates who may not previously have been able to afford to buy a practice, to venture into the market.
Points to Note
1. As employers, you should advise staff who are displaying symptoms of COVID-19 not to come into work. Payment arrangements should be decided between you.
2. Any staff who self-isolate will only be entitled to Statutory Sick Pay, but it is your choice to pay more if you so desire.
3. Should staff refuse to come into work, who are asymptomatic, you can discuss with them taking this leave as holiday or unpaid leave.
How Prosperity Law can help
In these unprecedented times, we at Prosperity Law are doing our bit to help the business community – we believe that only by pulling together at this difficult time can we come out of the other-side stronger.
To this end, we are offering all businesses affected by COVID-19 free legal assistance.
This offer of assistance will, in the first instance, at least, be available for up to 2 hours per case on any legal issue that is within our expertise as a full-service commercial law firm, but, in particular, to the following issues:
- Dental law
- Corporate and Commercial
- Commercial Litigation
- Business restructuring and asset realisation
- Landlord disputes/re-negotiations
- Contractual disputes
- Governmental relief
- Debt recovery and debt management
To access this free service, simply log on to www.prosperitylaw.com and provide us with details of your situation either by email to firstname.lastname@example.org or through the Live Chat facility on our website. One of our experienced team will be in contact to see how we can help.
You can also contact Jonathan Jacobs, who is a specialist dental solicitor on email@example.com or 07776 132339.