My colleagues have written in previous issues of DDN about the importance of submitting comprehensive Factual Accuracy Comments (FACs) to your CQC inspection report if you consider that the report and/or rating is not a true reflection of your service. Most recently, one of my colleagues set out some of the changes proposed by the CQC to the Factual Accuracy Process which had been put out to consultation.
In April 2019, following the end of this consultation amongst Providers, CQC finalised and rolled out its new factual accuracy process and have updated the “Provider Handbooks” to incorporate the changes.
Substance misuse Providers should ensure that they are familiar with the most recent version of CQC’s guidance and the new FAC process and forms.
Main Changes
The consultation had proposed a number of amendments to the FAC process including a reduction in time – from ten to five working days – for Providers to submit FACs, prohibitive word count restrictions and draconian restrictions on requesting further evidence or inspection notes from CQC. Fortunately, not all of these proposals have been taken forward.
The main changes which are set out in CQC’s Guidance for Providers and FAC guidance are as follows:
New FAC Form and Word Limits
A new FAC form has been introduced and a link to this will be emailed to the appropriate registered person along with the draft report. The Provider then has 10 working days from the date of the email to submit their factual accuracy comments on the new form.
The new FAC guidance states that all providers must use this form and CQC say they will only permit Providers to depart from the use of this form “in exceptional circumstances”. It should be noted that there is no statutory basis for CQC to impose a requirement to use this prescribed form and the CQC should not refuse to accept other forms of comments unreasonably. However, the mechanism to challenge an unreasonable refusal would be by judicial review which would be time consuming and expensive for a Provider. Providers should therefore endeavour to use the form wherever possible and, if there are any reasons why they cannot, they should ensure to advise CQC of this in good time, in writing, setting out the exceptional circumstances that mean the form cannot be used.
The new form seems more complex and less user-friendly than its predecessor especially when it comes to the submission of evidence to support the FAC submissions. There is a reference to “evidence tables” being given to some types of providers to respond to, in addition to their draft report, but no detail of who specifically will receive these tables or what they will contain.
The new form is exceptionally prescriptive and seems designed to make life easier for the Regulator and more difficult for the Provider that needs to challenge a report to avoid having inaccurate or damaging information about its service put in the public domain.
Providers are told that for each point, they must specify exactly where CQC can find the information that supports the correction or the completeness of the information but that they cannot hyperlink or embed it into the form. It appears that there is no reason why this information cannot be sent separately by email, as long as the relevant parts are clear and specifically referred to in the FAC form. CQC’s website states that if documentation is provided in support of a point, you must specify the page and paragraph number and highlight the relevant part of the document that relates to the point you are making.
We would always encourage Providers to be clear and specific when it comes to referring to evidence but often these matters are not straightforward. Under the new system, in doing so, Providers will also have to work within the newly imposed character restriction on each point they wish to make in the FAC.
In the new FAC table each row is limited to a maximum of 975 character (about 150 words). That said, the guidance also states that “if you cannot make your point using one row, continue in the one below”. Therefore, the point of the word limit remains unclear and it may be the case that all CQC will achieve here is making response forms disjointed and cumbersome for Inspectors (and Providers) to manage.
Deadline for response
The new guidance suggests CQC will take a strict approach to the deadline for submitting FACs. The non-statutory deadline of 10 working days has been in place for some time and whilst the consultation had suggested this time would be shortened this proposed change was not welcomed by Providers. As such the 10 working day deadline has not been amended, however, CQC now state that they will not extend that 10 day deadline unless there are “exceptional circumstances”. Providers must let CQC know of any such circumstances “immediately in writing”. At the moment there is no further information setting out what would be considered to be “exceptional” circumstances and therefore providers should be very careful to submit their FAC’s in good time and let CQC know in writing with as much notice and information as possible if they are not going to be able to meet the 10 working day deadline.
Requesting Inspection Notes
The consultation had suggested that CQC were going to attempt to implement a blanket refusal to release inspection notes as part of the factual accuracy process. We are pleased to see that the new guidance takes a more measured approach to this stating that, whilst CQC will not release the inspector’s full notes from an inspection, they “will consider requests for extracts of notes about a specific issue where this is reasonably necessary to enable you to understand the basis for a statement in the draft report that you believe is factually inaccurate (that is, if the basis of our statement is not clear from the draft report).”
It is absolutely correct that a Provider should be able to request further information to clarify parts of a draft report that are unclear to allow them to be able to provide an appropriate response. CQC now explicitly request that if Providers do ask CQC for information as part of the factual accuracy checking process, their request should be short, specific and should clearly justify why they need the information to raise a point of factual inaccuracy. We would always encourage providers to be specific about why sight of inspection notes or further information from CQC to enable them to respond to the report is necessary. Providers should not be discouraged from making such requests, after all the notes contain the underlying evidence upon which judgments and ratings are based.
Conclusion
It remains to be seen whether the changes to the FAC process will really make the process more efficient. At first glance, the changes appear to be geared to making the process easier for CQC but not necessarily for the Provider.
Providers should in no way be discouraged from submitting robust factual accuracy comments with evidence when these are required. CQC appear to forget how damaging and irrationally stigmatising an incorrect rating can be for a provider. In a climate where resources are decreasing, reports are becoming shorter and less detailed and inspection timeframes are increasing, it is all the more important that Providers seize their opportunity to ensure the information about their service that is placed in the public domain is correct.
The new guidance and FAC tables can be downloaded at the following link:
https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/factual-accuracy-check-how-respond
