BUPA Physiotherapy Tender Process

[physiobob]

This is today's update from the collective work of many and the instruction of our independent legal team. Many thanks to Max et al. who have worked tirelessly on behalf of the rest of us.

The following represents a legal challenge that has been presented to BUPA. We wanted this to come from the CSP - they have been given so many opportunities to make a better job of representing you, their members best interests. They have singularly failed to do so. Competence comes in to the equation not just hard work.

This has been sent to BUPA this afternoon. Read and decide for yourself if, given the legality of the situation you still want to sign up to the tender. This has been drafted by the Head of Competition Practice at Nabarro LLP not a medical negligence lawyer instructed by the CSP…enough said.

Tender for physiotherapy services

We are writing in connection with BUPA’s tender for physiotherapy services.

We understand that BUPA has been in discussion with the Chartered Society for Physiotherapy (”CSP”) and Physio First and that through these discussions BUPA will be well aware of the considerable concerns which the industry has raised about BUPA’s proposals for a network and about the conduct of its tender process.

We now seek urgent clarification of BUPA’s tender, and in view of the impending closing date for tender submissions (Friday, 24 April 2009) we request that you immediately suspend the tender process so that the concerns raised are properly aired and addressed.

The issues of concern are as follows:

1. We remain concerned that the tender process will have the effect of significantly reducing the number of providers which BUPA recognises and is willing to reimburse. BUPA’s Advisory Notes for the Tender state: “The number of providers selected for each region will depend on our volume requirement in that region … we will then appoint sufficient providers to ensure that there is appropriate local capacity to meet the requirements of our members.“
We understand that BUPA has been in discussion with CSP and Physio First and has indicated that it is prepared to remove any cap on the number of providers which will be admitted to the network.

We seek BUPA’s urgent written clarification that, notwithstanding the terms of the invitation to tender, there will be no limits on the number of providers selected within any region. Furthermore, if this is indeed the case, and all providers are potentially able to secure a place on the network, tenderers need to understand how BUPA will evaluate tenders and select providers. Will there, for example, be a “minimum” price or quality requirement, which a tenderer must meet in order to secure appointment to the network? If so, tenderers are entitled to understand what these minimum requirements are.

BUPA’s apparent indication that it will not have any limit based on volume requirements represents a fundamental change to its tender. In the interests of transparency and fairness, BUPA now need to explain to tenderers how the selection process will operate.

2. We are concerned that the requirements imposed upon physiotherapists under the new contract may constitute regulated activities under the Financial Services and Markets Act 2000 (”FSMA“). Since contravention of FSMA is a criminal offence, we propose to seek clarification from the FSA prior to recommending that physiotherapists enter into the new contract with BUPA. If the physiotherapists would be carrying out a regulated activity under the new contract, and the contract terms were not changed by you, each physiotherapist would need to become an appointed representative of BUPA prior to his entering into the new contract with you.

Under the Financial Services and Markets Act (Regulated Activities Order) 2001 (as amended) (”RAO“) physiotherapists may provide information about an insurance policy to BUPA members on an incidental basis. In addition, they may manage claims on behalf of BUPA. We propose to seek clarification as to whether clauses 3 and 4 of the new contract impose obligations on the physiotherapists which are beyond those which are permitted under the RAO and, more generally, confirmation as to whether a regulated activity would be carried out by the physiotherapists under the new contract. Our key concerns are twofold. Firstly, since physiotherapists act as agents of the member (who is their principal), they owe fiduciary duties to that member. This means that in entering into the new contract with BUPA, the physiotherapist is putting himself in a position of conflict. Further, the new contract requires the physiotherapist to advise on and explain certain terms of a member’s policy to them including level of coverage, exclusions etc. If such activities are regulated activities under FSMA then, by entering into the new contract with BUPA without first having become an authorised representative of it, the physiotherapists will be committing a criminal offence.

3. BUPA’s own primary care business – BUPA Wellness – is a significant provider of physiotherapy services. We call on BUPA to explain what safeguards it will put in place to ensure that the tender process is fair and non-discriminatory and that tenders from BUPA Wellness clinics are evaluated on an arm’s-length basis. BUPA is aware that both the OFT and the Competition Commission have previously raised concerns about the lack of “Chinese walls” between BUPA’s insurance and clinical services activities. Our understanding is that the BUPA Wellness business is closely integrated within BUPA’s insurance operations and therefore it is difficult to see what information barriers are in place to ensure that tenders are treated on a non-discriminatory basis and without preference to BUPA Wellness. We therefore call on BUPA to explain – in the interest of ensuring that tenderers have full confidence in the tender process – what measures it is taking to ensure even-handedness in relation to BUPA Wellness.

4. We also ask BUPA to clarify the extent to which providers in a network are entitled to charge additional fees above the BUPA reimbursement level – so-called “top-up fees” – to subscribers. Clause 4 of the standard terms and conditions appears to require that the provider may only submit invoices to BUPA and may not separately invoice patients in respect of any shortfalls. This is a fundamental departure from the normal practice between insurance companies and providers, where providers have been typically free to negotiate top-up fees with patients above the insurance company’s reimbursement level. We would view with considerable concern any attempt to restrict top-up fees, which appear to raise significant competition issues.

These concerns are shared by many other members of CSP and Physio First, as you will be aware from your discussions. It is impossible for BUPA to run a fair tender process, and to expect applicants to be in a position to bid, until these important issues of principle have been addressed. In the circumstances, we would ask you to suspend the tender process pending clarification and proper discussion to resolve the industry’s concerns.

In the event that BUPA proceeds, we are seeking legal advice as to the legal remedies which may be available, and we intend to bring these matters to the attention of the Office of Fair Trading by way of complaint.

Yours sincerely...

Now again from thephysiosvoice team..

Let’s be clear. This may not be a silver bullet but it will make BUPA think hard about what they are doing. It will force them to clarify, in writing, their position on some key commercial issues not the inconsequential bits and bobs negotiated so far by the CSP on our behalf. This will take some time and will force them to take a less aggressive and overbearing approach to this process. Let’s just take the time to revisit some facts. Signing up to this now, in the current state would be extremely foolhardy. Signing up to any form of restrictive network and breaking your contract with the patient is not a smart move either. We all do have a choice and should not feel bullied in to something we don’t like and we know is bad for the profession. We really are at a cross roads. Which road do you want to go down? Sorry - the facts:

1. Start the erosion of the very clinical autonomy that allows us to deliver the best outcome for our patients.
2. Tendering will mean a loss of choice for patients and will effectively break our contract with them. Tendering will mean you have a legally binding contract with an Insurance company who will be able to dictate who you see and how you treat and the price you can charge for doing so.
3. Tendering is no guarantee of success - BUPA have made it explicitly clear that tendering at a level below the guide pricing is more likely to lead to success.
4. Tendering will mean agreeing to some very one sided terms and conditions and if you think for a moment that BUPA have the desire or resources to negotiate with us all separate terms and conditions then please think again.
5. The other insurers will follow if this tender process is successful - that’s almost guaranteed in my eyes.
6. I also think that what is on the table today and indeed not on the table today will change at some point and if you think your negotiating position is weak today then once you have a contract and a network is established it’ll actually be weaker.
Let us know what you think. Let others know…

[JacobI]

I would like to respond to Alasdairjon #108 - you can't tender without signing the Terms and Conditions, so even if you leave some bits blank on the tender document, you have still agreed to the T&C, so what's the point?
I also sent an email to Jane Gallagher, with a copy to the Tender team, and got the same automated message.

Please - don't waver, don't sign your profession away!!

[Deedee]

I have finally reached my decision and sent an email to Jane Gallagher stating the following:


On careful consideration, I find myself unable to agree to all the proposed terms and conditions of your tender.
I would, however, be more than happy to continue treating your clients under the terms and conditions of my existing agreement with yourselves.
As such I would like to submit my existing agreement with BUPA in lieu of my online tender



Thanks to all concerned for the fantastic job you have done, the great website and most of all the forum.
Well done and fingers crossed !

[physiobob]

here's a pure gem from someone who sent a letter to Jane Gallagher as a word attachment (perhaps the most common attachment on the web). I think you can even open a word document as text if you had to.

Dear All,

I got this response and a subsequent phone call from BUPA today.

I think that it is surprising that they don't have Word 2007 but maybe that is why they are trying to cut costs!

Has anyone else had a similar e-mail about future opportunities to tender?

Michael

"Dear Mr Nicol

I am sorry we are not able to read your attached letter as it is in a
Word format which is not compatible with Bupa's computer system. I am
sorry I was not able to contact you by phone this afternoon.

The deadline for submitting an online tender is midnight tonight, and
the phone lines close at 5pm. If you miss the deadline, you will see on
the Bupa therapies online website a notice later in the year regarding
arrangements for further opportunities to tender, if you so wish."

And another... I think it's going to be a long night for Ms Gallagher. Looking forward to my response but nothing received as yet.

I just received the response below to an email I sent claiming that I felt I was unable to tender due to many of the reasons that we have been discussing. They still seem to think the bullying tactics will work obviously, and are also not able to accept that changes have been made and further clarity is required. Anyone else had similar? Paul

From Jane Gallagher;

Dear Mr Goss,

We do not agree that there are any problems with the contractual terms proposed for the tender and there have been no changes to the tender process. The deadline for submissions under the tender will remain as midnight tonight. If you do not submit a tender by that date we may be unable to consider you for participation in the tender process which would mean you will not be recognised by us to provide treatment to our members funded by Bupa. From the 15th May 2009 the current basis on which you provide treatment to Bupa members will end. Whilst I would hope that you will now be able to submit a response to the tender I do appreciate this is a matter for you to decide."

The Terms and Conditions have been available to review for the past 4 weeks, we believe this has offered time to take independent advice if required.

The benchmark prices in the tender are based on recent claims for physiotherapy treatment. There is the opportunity to submit a proposal to Bupa and in establishing agreements we will consider a number of factors. Session averages and price are extremely important but so too is the clarity that contracts will provide (clearly agreed terms between Bupa and the clinician for physiotherapy services offered to our members) and all elements have value such as location, clinical specialties and evidence of service excellence.

We can confirm that any submission which is made by Bupa Wellness in relation to the tender is made on exactly the same basis as any comparable physiotherapy provider. Whilst the businesses of Bupa Insurance and Bupa Wellness may have links there is separate management involved. The involvement of Bupa Wellness in this tender has at all times been at arms length. The teams dealing with the Bupa Wellness proposal and the Bupa Insurance tender are managed separately and information has only been provided between the two on the basis it would be provided from Bupa Insurance to any other provider. Any bid from Bupa Wellness will be subject to the same consideration as any other provider.

With kind regards

Jane Gallagher
Physiotherapy Tender Team
Bupa, Thames Side House, Staines, Middlesex TW18 4TL

It's interesting that BUPA Wellness are still publishing on their websites that they charge £51 for a 30 min session, £73 for an initial assessment and £127 for an 'Opinion and Report'. I thought those were above what they believe to be industry standards or as they put it 'value for money'?