Following the roll-out of CQC’s rating system and the new Regulated Activities Regulations that came into force in April 2015, CQC is allocating new ratings for providers at an ever increasing speed. At the time of writing this article, CQC has published ratings for 3707 care homes. Of these, only 12 have been rated as ‘outstanding’, with the majority being rated as ‘good’ (2215 services), followed by 1252 services rated as ‘requires improvement’ and 228 receiving the lowest rating of ‘inadequate’. Whilst the overall majority of providers have been rated as ‘Good’, what right of challenge do providers have if they are given a rating that is not truly reflective of their service?
Factual accuracy comments
The first step to challenging the findings of an inspection is through the factual accuracy process. As was the position under CQC’s old inspection regime, providers continue to be allowed 10 working days from receipt of the draft inspection report to submit factual accuracy comments to CQC. Providers should be aware that they can challenge judgements as well as ratings through the factual accuracy process, particularly if factual errors have been relied on to inform judgements. Factual accuracy comments will be considered before the report is finalised and published on CQC’s website.
Rating review process
The second and final opportunity for providers to challenge the findings of an inspection through CQC’s official processes is by virtue of CQC’s rating review process. There is limited detail in the Provider Handbooks on how providers can request a review of ratings. However, further information is provided by CQC upon receipt of the finalised inspection report. CQC currently states that providers have 5 working days from the date of publication of the inspection report to notify CQC that they intend to submit a rating review request and 15 working days from the date of publication to submit their full, detailed request for a review of ratings.
You will note that the deadlines refer to rating reviews taking place after publication of the inspection report. The Provider Handbooks confirm this position stating that providers can only engage in the rating review process after publication of the inspection report on CQC’s website (albeit that CQC will state on the provider profile that the rating is being challenged). Therefore, for providers who want to avoid negative reports being published in the first place, the factual accuracy process is more important than ever. If providers do not agree with the content of a draft inspection report they should be submitting detailed reasons supporting why the ratings are not correct as a result of factual inaccuracies at the factual accuracy stage and also challenging the judgements made by inspectors.
Grounds for requesting a review
CQC also makes it clear that the only grounds for requesting a review of ratings is “that the inspector did not follow the process for making ratings decisions and aggregating them. Providers cannot request reviews on the basis that they disagree with the judgements being made by CQC, as such disagreements would have been dealt with through the factual accuracy checks….”
Whilst the rating review process assumes that factual issues should have been dealt with appropriately at the factual accuracy stage, it does not take into account those issues that may continue to be in dispute with CQC. For example, if providers have submitted clear evidence to counter comments made in inspection reports only for their submissions to be dismissed by CQC. At Ridouts we have seen examples where CQC has stated it does not accept a factual accuracy comment on the basis that it is presenting new evidence that was not viewed during the inspection, and therefore the evidence will not be taken into account. This cannot be right. If the evidence was available at the time of the inspection but the inspectors failed to view it and drew incorrect conclusions as a result then it should be taken into account at the factual accuracy stage when presented to CQC. If it is not considered at the factual accuracy stage then logically it follows that providers should be able to present the information as part of the rating review request, this being the last formal opportunity for providers to challenge the findings of inspection reports.
However, CQC appears to be applying a very narrow approach to the review of ratings. It seems unlikely that the rating review team will review evidence of a factual nature as they consider the facts to be correct at this stage. However, CQC may be more amenable to the argument that the inspectors failed to carry out an adequate investigation and sufficient enquiry in line with CQC’s own published guidance, therefore linking the factual inaccuracies with inadequacies in the application of CQC’s own inspection methodology.
The narrow remit of the rating review process described above highlights the increasing importance for providers to challenge the content of inspection reports at the factual accuracy stage. Providers should be submitting detailed reasons to support their argument against CQC’s judgements and factual inaccuracies given that this is their only opportunity to challenge the factual content of the report. Once it gets to the rating review stage the CQC guidance indicates that it will consider the facts as stated in the inspection report to be correct and will only look at the process followed by inspectors to reach the rating. Therefore, when submitting a rating review request providers should be considering whether CQC has followed its published processes properly in reaching the ratings for the service.