To the disappointment of everyone and the surprise of no-one, the Government finally published its white paper in which it accepts the principle of a cap on fees but no indication as to how or when it will be implemented. For providers on the ground, the paper doesn’t make the least bit of difference. Providers are, however, facing a relatively new and malicious threat to reputation and revenue. The Care Quality Commission is not only issuing an unprecedented number of warning notices but is also releasing press releases about the vast majority of them. Many of the press releases have been picked up by local press with serious reputational consequences to providers.
CQC’s own statistics show that when it comes to enforcement, they are doing little else other than issuing enforcement notices. In April and May CQC obtained just two urgent suspensions and no cancellations at all but during the same period issued 107 warning notices. More worrying for providers, CQC is issuing press releases about the warning notices at an alarming rate.
Publication of the press releases is having a real impact on providers. Local press frequently pick them up and have published stories up and down the country. Understandably, the newspaper articles cause concern from stakeholders ranging from families, prospective service users and commissioners. It follows that providers should do all they can to persuade CQC not to publish. The problem is that whilst providers have a statutory right to make representations before notices are published, CQC has revealed to us that barely 10% of such representations are upheld.
The problem is exacerbated by CQC’s internal guidance on Warning Notices. The guidance acknowledges that providers must be given an opportunity to make representations before CQC publishes information, but greatly restricts what inspectors should take into account when considering whether or not to go ahead with publication.
The area that is proving most irksome to providers is CQC’s refusal to consider improvements made by the provider in the period between inspection and the decision to publish. We have seen many cases where providers had remedied issues well before the warning notice was even issued. CQC nevertheless went on to publish information about the notice, often several months later, despite there being no dispute that the provider had by then been compliant for some considerable time.
There is no doubt that CQC’s policy of ruling out consideration of improvements when deciding whether or not to publish information about the warning notice is unlawful. We have repeatedly explained that to CQC and eagerly look forward to their reply.
The process of making representations about the decision to publish information is both confusing and cumbersome as CQC have tried to keeping the process of making comments on draft reports separate from making representations about the warning notice. With that in mind, here are some tips:
REPRESENTATIONS ABOUT WARNING NOTICES
- Providers are usually given just 5 working days to submit representations about the warning notices. Make sure you meet the deadlines.
- If you need more time, ask CQC giving reasons but unless and until an extension is granted, assume extensions will not be given.
- DO include details about how you remedied matters and when.
- Include details about how you think service users might be adversely affected by publication, for example, by sensitive information being available in the public domain or unwanted local attention about the service.
- Include details about factual inaccuracies, but make sure you also include them in your comments to the draft inspection report (see below). Also state that inspectors should take into account the outcome of your comments to the draft report before making its final decision on publication.
- CQC has a duty to consider representations about anything to do with the warning notice so feel free to say anything you consider relevant.
COMMENTS ABOUT THE DRAFT INSPECTION REPORT
- Providers are usually given 10 working days to respond.
- Go through the report line by line. On each occasion you disagree with their comments, state why you disagree and provide supporting evidence.
- Read CQC’s Judgment Framework and identify any methodological flaws.
- Ask for a further draft before publication.
- Reserve the right to make further comments in response to CQC’s reply.
Providers who have concerns with the way the inspection was carried out should also consider issuing a complaint.
As a specialist firm specialising in this area, we welcome information from providers about how they are being affected by CQC’s policy. This is an area where CQC is undoubtedly in error and providers should not feel that they need to face these problems alone. In many cases, we will be able to help.