Last week saw the publication of CQC’s ‘new’ factual accuracy comments (“FAC”) process for draft inspection reports. In last month’s Ridout Report Jenny Wilde discussed the potential consequences of the proposed changes. As we now know what CQC has decided, this Ridout Report discusses what changes have been made and how these may impact a provider’s approach to challenging draft reports.
CQC’s consultation on the FAC process took place last year and was concluded in early 2019. Health and social care professionals were asked what they thought about various proposed changes including a word limit to FAC’s and a reduction in the timeframe for response. We are aware of many care professionals responding to the consultation and the Ridouts team also submitted responses highlighting our concerns with various suggestions raised in the consultation. Thankfully, it looks like the public’s comments have been taken on board and the result is a very pared back version of the initial proposals.
New FAC Form
A new FAC form has been introduced that CQC states all providers must use. This can be downloaded from the CQC website and a link should be provided by CQC along with the draft report. The CQC FAC guidance states that if for some reason you are unable to use the form, you must notify CQC immediately and they will use their discretion to determine whether there are exceptional circumstances. Please note however that there is no statutory basis for CQC’s requirement to use the form and it could be argued that it would be unreasonable for CQC not to accept submissions in any other form if the points being made are clearly valid. Having said this, providers must be aware that such a refusal by the CQC would have to be challenged through judicial review proceedings.
The form itself has not changed much other than it appears to be more complex. As well as the previous three tables (sections A-C) there are now, in certain circumstances, four more (D-G). Table G relates to the use of resources report (which is only relevant to NHS trusts) and tables D-F relate to the factual accuracy of information in the “evidence appendix/table” which may be provided along with the draft inspection report in some instances. It is not clear at this stage when CQC will provide an evidence appendix/table, what will dictate its provision and what type of information it will contain.
The new FAC form also has a character limit embedded into the tables. The consultation previously suggested a word limit being applied to FAC submissions. In my reply to the consultation I argued that any word limit would be arbitrary and had the potential to stifle providers submitting valid FAC’s. I highlighted that the most important factor to the FAC process is to ensure that the report provides a correct representation of the service to the public and this may not be achieved if a word limit were imposed.
Although CQC have proceeded to include a character limit to FAC submissions, this is not as draconian as the type of limit first suggested in the consultation. In the new FAC table each row is limited to a maximum of 975 character (about 150 words) BUT the guidance contained in the tables states “if you cannot make your point using one row, continue in the one below”. This demonstrates CQC taking on board people’s concerns about an absolute word limit. However, if you can just continue a point in a subsequent row, what is the point of the character limit other than to further complicate the process? It appears this change has been made purely for the sake of making a change with no real benefit to either party. Providers will still be able to say as much as they wish by adding lines into the table. The only thing this achieves is a formatting nightmare.
CQC is now more specific about how evidence should be presented in support of FAC’s. The new FAC tables themselves state “for each point, you must specify exactly where we can find the information that supports your correction (you cannot hyperlink or embed it into this form)”. CQC’s website is also clear 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. This is a sensible direction from CQC that should hopefully assist in making it easier for inspectors to understand evidence and as a result, speed up the process of FAC review.
However, providers should note that the guidance further states that if documentation is not clear, the inspector will contact the provider to query this and if an answer is not provided, CQC may not consider the document further. Providers should therefore ensure they are responsive to any follow-up questions from CQC during the FAC process to avoid valid FAC’s being disregarded on a technicality.
Deadline for response
As well as the new FAC form, CQC has also indicated they are taking a harder line in relation to the deadline for responding to draft reports. For years now providers have been given 10 working days from the date of receipt of the draft inspection report to submit their FAC’s. It should be noted that this is not a statutory deadline and is set internally by CQC. Despite the consultation stating CQC would be shortening this time, thankfully they have decided to stick with 10 working days. However, while previously it may have been relatively easy to get an extension to this deadline, CQC now state that they will not extend the deadline unless there are “exceptional circumstances” and providers must let them know of any such circumstances “immediately in writing”. There is no further information setting out what would be considered to be “exceptional” but providers should be wary of this more hardened stance and ensure they submit FAC’s, when required, within the set timeframe.
Providers should note that CQC now states that the 10 working days runs “from the date of the email” containing the draft inspection report. This used to be from the date of receipt of the draft report which may have previously been sent by post in some instances. The wording suggests that all draft reports will now be sent by email. Therefore, if some providers are not used to corresponding with CQC by email, they should ensure CQC have the correct email address on record and that this is checked regularly, particularly if they have recently been inspected and are expecting a draft report. If an email containing a draft report is overlooked, CQC may not be sympathetic in allowing an extension to the FAC deadline.
While it is good to see that CQC have taken on board the public’s response to the consultation, it is unclear exactly what benefits are to be had from the changes to the FAC form. It appears that at the very least CQC have tried to simplify the process for themselves, for example through the stricter guidance on the provision of evidence. However, apart from that, not much else appears to have been achieved which raises the question – what was the point of the consultation and has this been a waste of time and resources?
The new guidance and FAC tables can be downloaded at the following link: