Revision Of The Factual Accuracy Comment Process Is As Clear As Mud

The CQC recently asked for feedback on the factual accuracy comment (“FAC”) process – the process whereby providers have 10 working days to submit comments to the CQC, following receipt of a draft inspection report.  The process enables providers to comment, challenge and present evidence with a view to amending/changing the contents of the report, and possibly the rating(s).

The request comes as the CQC continues to develop its regulatory approach following the launch of its revised strategy in 2021.

On 13 October 2022 the CQC launched a video called “Provider Review Process in the new assessment framework”.   The blurb to the video states that the CQC “explored views on what impacts providers and got their feedback on what else we might need to consider when designing the process.”

However, the blurb continued by saying the video was recorded at an engagement event the CQC held “with professionals working in health and social care and the organisations that represent them; and wider stakeholders.”  It was not clear how many of these professionals were providers, or who the organisations or wider stakeholders were.  Considering that the purpose of this event was to gauge views of providers, the ones actually impacted by the FAC process, I would have expected the event to have been made up entirely of providers but the blurb suggests otherwise.

The purpose of event was to get thoughts and feedback on the new “Provider Review Process” – a new FAC process.  The problem was, they really didn’t tell you very much at all.  So what did we find out?

1. The Provider Review Process (“PRP”) would be primarily conducted through a new provider portal
2. There would be guidance on how you can complete the PRP.
3. Providers will be able to submit relevant feedback on CQC’s preliminary judgements “within a set timeframe”.

We did not find out:

1. What the portal itself looks like, how it functions and what format the PRP will take;
2. What that guidance looks like.
3. How long providers will get to submit its PRP submission.

There are gaping holes.

There was quite a lot of talk about what the CQC wanted to achieve but very little in the way of what this would look like, or what form it would take.

We know the KLOEs and Prompts are being replaced by Quality Statements.  These Statements are pitched at the level of Good and the CQC has said that there will be a golden thread of looking at Good throughout its assessment of quality.  This suggests a return to a pre-pandemic inspection process where the CQC would, in theory, go into a location looking for Good, rather than the current risk-based inspection approach which are prompted by concerns which, invariably, means the CQC goes in looking for risk, and not Good practice.  However, the CQC will not be carrying out an on-site review every time (see below for more information).

The CQC has said that it wants to be more consistent and transparent in its approach and how it makes judgements on quality.  I recently wrote an article on how the CQC’s internal auditors found the CQC’s consistency of regulation to be ‘High Risk’.  The CQC refused my Freedom of Information Act request for the document but at the July 2022 CQC Board Meeting, Sally Cheshire noted that consistency of CQC’s regulation is the key point of the CQC’s transformation programme.  The CQC has said in order to be more consistent and transparent it had developed a way of categorizing and scoring six evidence criteria as part of its assessments.  The CQC has recently provided some more information about the scoring system but it has to be very careful – too rigid and it will be fettering its discretion to depart from the criteria if justified to do so, too flexible and we don’t get the consistency that the sector wants.

The CQC has said that inspection reports will be shorter as the current assessment “tend to be sort of quite detailed, quite involved”.  There are so many issues with the current inspection reports that it makes it difficult to understand how the reports can be made shorter, yet relay information in a meaningful and contextual way.  That is something I already considered many months ago.  Whether the FAC process would become harder as a result was also a concern raised by the engagement event.  The concern centered around there being judgments but with less information and whether providers would get to see all the data that the CQC had collected on assessment that may not find its way into a report.  This is a really interesting point.  Over the years, the CQC has become more and more reluctant to share the evidence it relies upon to form its judgements.  The CQC frequently refused to share the inspection notes from an inspection.  We always questioned this on the basis, if it reflects what is in the report, what in your concern?  It’s a contemporary recording of what the inspector saw on the day (or at least should be).  Additionally, there have been numerous times over the years when we have challenged a finding of the CQC that it then produces additional points that were not in the report in order to justify its findings.  The CQC wants to be more transparent in its approach but has to get a whole lot better at sharing the evidence it relies on.  Oh, and not just take what someone says as read.  The CQC seems to have lost some of its ability to triangulate evidence over recent years.

The CQC wants to provide up to date views of quality and in order to be more responsive it will be doing more frequent, shorter assessments.  It has said that assessments will not always include an on-site inspection.  Some may be entirely remote.   Red flag alert – do documents always tell the whole story? The assessments may lead to a change in score and rating.   The CQC wants to make the burden on itself and providers more proportionate, yet with no detail on what this will look like, it appears to me that the noises coming out of the CQC are actually looking to curtail challenge, rather than enhance it.

There was a fairly lengthy discussion at the engagement event about the name of the process – Provider Review Process verses Factual Accuracy.  For me, it’s not about the label that it’s given – call it the Squiggly Banana Chops process if you like – it really doesn’t matter, providing the process is fair, transparent, clear, and reasoned.  That is something I’ll believe when I see it.

At Ridouts we support providers with a range of issues including CQC inspections and the resulting reports. If you require assistance or advice in relation to any issues with the CQC, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address info@ridout-law.com or by calling 0207 317 0340.