Last month CQC announced that they had updated their guidance on “How CQC monitors inspects and regulates adult social care services”. This document replaced the old Provider handbooks in November 2017.
Of particular interest is the addition of a new section to the guidance setting out CQC’s position with regard to services repeatedly rated as Requires Improvement. By repeatedly, CQC mean rated as Requires Improvement on more than one occasion.
CQC have stated that Providers should aim to achieve and sustain an overall rating of ‘Good’ or ‘Outstanding’ and if rated as Requires Improvement on more than one occasion they will “take proportionate action to help encourage prompt improvement from a Provider to achieve and sustain a rating of Good”.
The new section of the guidance sets out the following with action the CQC will take depending on the risks or issues they identify and the circumstances of the service:
- “At the first rating of RI, we will write to inform the provider that subsequent ratings of RI may constitute a breach of Regulation 17 (good governance)and suggest sources of help for the provider to seek improvement. The letter will be copied to the lead commissioner at the same time, where appropriate.
- Where there is a breach of the regulations, we will consider proportionate enforcement action, as stated in our published enforcement policy and guidance.
- We may request the provider to complete and return (within 28 days) an improvement action plan to demonstrate how and by when they will make improvements to the quality and/or safety of their service to achieve an overall rating of at least good. This will be requested under Regulation 17(3) Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
- We may also request a meeting with the provider, registered manager and commissioner to discuss our concerns, improvements needed and support that may be available. After the meeting we will send a letter to the provider, confirming the points agreed. This may include requesting the completion of an improvement action plan.”
CQC state that “Inspectors will use their judgement to take proportionate and flexible action to encourage the service to improve.”
Whilst the Guidance changed in May 2018, CQC have applied this change retrospectively stating that this section applies to services already rated as Requires Improvement before 1 November 2017.
Suggesting that subsequent ratings of Requires Improvement may constitute a breach of Regulation 17 seems counter intuitive to taking proportionate action to drive improvement.
Regulatory breaches must not be applied lightly and must be properly evidenced. This is particularly so given that breaches of certain Regulations can give rise to prosecution and other more serious regulatory action.
CQC must apply this change to the Guidance very carefully and be mindful of the individual circumstances of each service. To attempt to suggest that being rated Requires Improvement on more than one occasion would automatically amount to a breach of Regulation 17 would obviously be disproportionate. Particularly so given the broad spectrum that the rating of Requires Improvement encompasses in the eyes of the regulator. It can mean that a service is just above Inadequate or just below Good.
Furthermore, CQC have shown a trend of insisting on ‘sustainability of improvements’ and will often, we would say unfairly, continue to rate services as Requires Improvement following re-inspection, even if they have demonstrated improvement, citing the justification that they have not seen sufficient sustainability of improvements. To then suggest that this would also lead to a regulatory breach does not support the image of a regulator that seeks to “encourage prompt improvement from a Provider to achieve and sustain a rating of good”.
CQC’s justification of this new approach that it will encourage “prompt” improvement from Providers also troubles me. As detailed in the KPIs to the 2018/2019 business plan, CQC endeavour to re-inspect services that are rated as Requires Improvement within 1 year from the publication of the inspection report. When you bear in mind that the CQC give themselves a KPI of 50 days (almost 2 months) from the date of inspection to publication of the report, a Provider could be looking at being stuck with a rating of Requires Improvement for at least 14 months before any re-inspection. Under the changes to the guidance this could mean them being labelled as being in breach of Regulation 17 for this time with the associated impact on the reputation of the service, not to mention the potential contractual, commissioning and tendering implications. This seems to me to be extremely unfair.
Providers could also see themselves stuck in a circular position with regard to requires improvement and regulatory breaches. The same guidance document, in relation to ratings, states that “In line with our enforcement policy, the overall rating for a service cannot be better than Requires Improvement if there is a breach of the Regulations.” Therefore, if a provider is rated as Requires Improvement on more than one occasion they could be in breach of Regulation 17, and if they have a regulatory breach their overall rating cannot be better than Requires Improvement. This seems somewhat absurd and does not strike me as an approach designed to encourage prompt improvement from a Providers to achieve a rating of Good.
CQC fail to recognise how irrationally stigmatising a Rating of requires Improvement can be to a Provider and how misleading it can be to service users and their families. Compounding this by adding the potential for regulatory breach is not helpful.
Our advice to Providers that find themselves in this situation is to ensure they challenge draft reports and ratings judgments through the factual accuracy process as they are entitled to do. Furthermore, challenge CQC to live up to the commitment in the business plan of scheduling re-inspection times in response to potential improvement. If you feel that your service has improved before the one year re-inspection frequency set out by the Commission then evidence it to your inspection team and invite them back sooner.
Ridouts are always on hand to assist Providers with such challenges.
The May 2018 version of “How CQC monitors inspects and regulates adult social care services”. is available on the CQC website at https://www.cqc.org.uk/guidance-providers/adult-social-care/how-we-monitor-inspect-regulate-adult-social-care-services and replaces the previous version dated November 2017.