Whilst the majority of CQC inspections have been put on hold during the COVID-19 pandemic, this will not remain the case forever. When inspections re-start there will inevitably be a backlog which could lead to reports being rushed, less detailed and more prone to error.
Incorrect or misleading information in CQC inspection reports can be extremely harmful to a Provider’s reputation and cause unnecessary upset and worry for people who use services and their families. A robust well evidenced factual accuracy check response will be vital in these circumstances. This is the first, and most important, opportunity for Providers to challenge the CQC’s judgment and ratings.
Drawing on CQC’s internal guidance to inspectors, its published guidance and our vast experience of assisting providers to respond to inaccurate reports, this article provides an overview of the factual accuracy check process and how it can be utilised effectively to challenge incorrect judgments and ratings.
Providers have 10 working days from the date of the email to them containing the draft report, not the date on the covering letter that comes with it. This is important to note as there is often up to a 48 hour delay between those letters being generated and the CQC’s National Customer Service Centre emailing them out to the Provider which could put the Provider at a disadvantage if they go by the date on the letter to calculate the deadline.
The 10 working day deadline is applied strictly. Extensions must be requested in writing and will only be granted in exceptional circumstances. CQC guidance provides that exceptional circumstances could include: failure of IT systems at the service; prolonged absence of the responsible person or an outbreak of contamination at the service. Every request for an extension is considered on a case by case basis and, for adult social care and primary medical services, are agreed by an Inspection Manager. Providers must never assume an extension will be granted and, if one is granted, they should ensure that it is confirmed in writing to avoid any risk of the incorrect draft report being published prematurely.
Calls to ASC Providers
In a relatively new process, CQC Inspectors will aim to telephone ASC providers within 2 working days of receipt of the draft report to discuss it and to ascertain whether they wish to submit a FAC response. Providers should treat this call with caution. It is important that it is not viewed as an alternative to submitting a written FAC response. CQC guidance is clear that the FAC response must be done in writing on the CQC’s FAC form. Providers must be careful not to think that any comments given during this call will be treated as their FAC comments and result in changes to the report. We have experienced cases where Providers have been told this, have not submitted any written FAC’s and then the original inaccurate draft report has been published unchanged by which time the deadline for a FAC response has passed.
What can you challenge?
CQC’s most recent FAC guidance provides that you can challenge any or all of the following:
- Typographical or numerical errors or, for example, incorrect job titles.
- Information that has contributed to a judgement, but which you believe is factually inaccurate. You will need to provide supporting evidence
- Additional information, or information that was omitted, which you think we should consider. For example, you may have further examples of exemplary practice that demonstrate real benefits for people using your service, which may support a rating of outstanding rather than good.
In practice, this means that you can tell CQC if they have got virtually any aspects of their facts, or judgments, wrong. Those judgments include the proposed ratings and any alleged regulatory breaches. We have regularly assisted providers to challenge ratings and/or alleged breaches of regulations which have been applied based on inaccurate facts or in disproportionate circumstances.
Any challenge must be supported with documentary evidence highlighted to the specific point it aims to support. Internal guidance to CQC Inspectors states that if a Provider disputes a point made without reference to supporting information, the inspector should seek such information from the Provider. If the evidence is not provided the point may not be considered. If that evidence is provided and accepted then the inspector should consider if it affects or changes the judgments or ratings.
It is important that Providers make a distinction between evidence that reflects the position at the time of the inspection and evidence/information about improvements made after the inspection. Whilst the latter may be accepted and referenced in the draft report it will not influence the judgment or rating whereas evidence of the former could lead to a change in ratings or removal of a regulatory breach.
When thinking about challenging judgments and ratings Providers must bear in mind CQC’s rating limiters. These are a small number of circumstances set out in the Provider Handbook (How CQC Monitors, Inspects and Regulates Adult Social Care Services) that CQC identify as sufficiently serious to limit the rating of the well-led domain to Requires Improvement. These include failure to submit statutory notifications, not meeting conditions of registration, not having a registered manager in place or not returning a PIR where requested by CQC. In addition, elsewhere in that same Provider Handbook, CQC state 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 regulations”. This can effectively a limit the overall rating of a service to Requires Improvment if a breach is identified even if, for example, a service has four Good ratings and one Requires Improvement rating.
Providers should be aware that these rating limiters are not statutory and they are not absolute. They are creatures of CQC’s guidance and CQC has discretion about whether or not to apply them. There can often be a good reason why, for example, notifications have not been submitted and why a rating limiter should not be applied. Providers can make submissions about these circumstances through the factual accuracy process and CQC, as a public body, is required to exercise its discretion in a reasonable manner, in considering whether it is appropriate for those limiters to be applied.
How should CQC respond to a Providers FAC submission?
Internal guidance to CQC is clear that CQC should respond to a Providers FAC comments in writing on the FAC form and be clear about what comments have been accepted or not and the reasons why. If comments are accepted they should be clear about whether the changes impact the ratings or judgments. The internal guidance on the FAC process is clear that CQC should not ignore any submissions and should not provide a generic response with no reference to the providers comments such as “this is not a factual inaccuracy/we have considered your comments” or write a decision with no reasons such as “the report will not be amended.” A failure by CQC to follow this guidance could give rise to grounds for further challenge.
The factual accuracy response must be reviewed by a manager and that manager must be a delegated manager who is independent of the original inspection site visit. Again, a failure to follow this process can give rise to further challenge of the response/ draft report in certain circumstances.
Unfortunately, there is no published timescale for CQC responding to factual accuracy comments which is ironic given how strictly the 10 working day limit is applied to Providers. Responses can take weeks, months or anywhere in between to come back.
A final point to note on the process is that, if CQC have agreed to make changes in their response to your comments, do carefully check ensure that these changes have actually been reflected in the proposed final report. We have seen cases where CQC have agreed to make changed but due to IT and other errors these do not actually get reflected in the final version of the published report.
A robust well evidenced factual accuracy check response is vital if you consider that your draft report and/or rating is not a true reflection of your service. Do not be fooled into thinking you can do this though a request for a rating review. By then it can be too late and the rating review process is very restrictive in its scope, does not allow you to submit evidence and is limited to 500 words in total. Most rating review requests do not make it beyond the initial screening.
To have the best chance of a good outcome, challenges to ratings, judgments and breaches should be made via the factual accuracy process.
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 re-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. This applies not only to services who have been rated less than good but also to those rated good who consider they ought to be outstanding.
We regularly assist Providers with all aspects of the FAC process and would be happy to advise you on your specific circumstances.