The CQC’s New Regulatory Regime – What We Know And Don’t Know

Providers are anticipating the changes to the CQC’s regulatory approach and how they will impact on their businesses. The CQC is drip feeding us with information and it can be hard to see how everything fits together. The aim of this article is to bring you up-to date on the information that has been publicised regarding the CQC’s new approach and to consider the effect of the planned changes.

Where It All Began

The CQC’s new regulatory regime is the realisation of its strategy which was published back in May 2021. The strategy set out the CQC’s ambitions under four themes:

• People and communities
• Smarter regulation
• Safety through learning
• Accelerating improvement

In April this year, the CQC reflected on its strategy, calling the new regulatory approach a ‘complex transformation’. Notably the CQC stated that it will “adapt” its plan along the way; which has been evident over the past two years.

What Is Changing?

The Way You Interact With The CQC

All of your interactions with the CQC will be via the new Provider Portal. The CQC claim that the tool will be easier than contacting them by phone or email, enabling you to share information with them, validate the information the CQC holds about you and to comment on CQC concerns in real time.

The Provider Portal is being introduced in stages. In August 2023, it was piloted with 230 Providers allowing them to explore its functionality. In September 2023, the rollout to all new Providers began and will continue in phases until March 2024, when, at that time the portal will be available to all Providers. As a practical point, the Nominated Individual and Registered Manager will receive an invitation to the portal with their login details and guidance on how to use it. Therefore, it is vital that Providers, Nominated Individuals and Registered Managers ensure that the CQC has up-to-date contact details for the organisation.

This will probably be one of the first obvious changes that Providers experience. It acts as your online account with the CQC for you to, amongst other things, submit statutory notifications and update your registration details. One benefit is that you will be able to see the history of all the forms you have submitted to the CQC. However, we look forward to seeing how easy it will be for Providers to validate information or comment on CQC concerns and how quickly Providers input is processed at the CQC’s end and reflected on the account. What is evident is that the portal removes the accountability of individual staff within the CQC to process communications via phone and email. This seems to be another barrier to human contact within the CQC organisation.

CQC As An Organisation

The CQC is reorganising its operational teams. They are bringing together their specialist sector teams (adult social care, hospitals, primary medical services) into one operations group.

The team of specialist inspectors will divide into four geographic ‘networks’: London and East of England, Midlands, North and South; and divide further into local teams. An operations manager will lead each team made up of:

• Assessors – who collect evidence off-site, consider evidence collected on-site and off-site and have an ongoing view of quality;
• Inspectors – who collect evidence on-site (during inspections) and lead enforcement activity;
• Regulatory Co-ordinators – who triage information;
• Regulatory Officers – who carry out administrative duties; and
• Specialist advisors.

The CQC believes the new team arrangement enables it to provide efficient support and have better conversations with Providers. The CQC suggests that you can speak with members of your local team for different types of advice and rely less on one person (i.e. previously your inspector) to provide support. What has not been explained by the CQC is how you will communicate with your local team – if it will be through the Provider Portal or whether you will be able to speak to a person via telephone. Furthermore, it appears that, due to the role of the Assessors, Providers will be in contact with Assessors as well as Inspectors in relation to evidence regarding its service, which has the potential of miscommunication if Assessors and Inspectors fail to communicate with each other. Providers should be alert to the CQC personnel involved in monitoring your service and keep everyone ‘copied in’; clearly that is easy with email – how easy will it be under the new regime remains to be seen.

This internal re-organisation is not completely new. The geographic division is extremely similar to the system that was in place pre-2015. Regulators often purport change which is in fact a rehash of an old system, resulting in unnecessary upheaval for Providers.

Assessment Framework

Another change includes the introduction of a single assessment framework to replace the four current assessment frameworks. Assessments, the way in which the CQC monitor services, will no longer be tied to set dates or driven by previous ratings. Instead, the CQC will collect evidence on an ongoing basis and can update ratings at any time.

What has not changed is, the CQC will continue to use inspections (site visits) as a vital tool to gather evidence and assess quality. When on site, the CQC will observe care and talk to staff and people who use the service. That said, because the CQC will be collecting evidence on an ongoing basis and can update ratings at any time, it will have the ability to update ratings without an inspection report. This can have highly damaging consequences for Providers if there are not adequate systems in place providing transparency of the CQC’s decision making process and systems to challenge their decisions.  The CQC has not publicised how Providers will be able to challenge evidence gathered outside of inspections – whether it will be through the Provider Portal or a process akin to Factual Accuracy Comments (‘FAC’), if at all.

The CQC plans to start using the new single assessment framework in November 2023 and will roll it out regionally, starting with providers in the South of England.  The CQC will continue to use the current assessment framework in remaining regions until roll-out of the new framework is complete by the expected date of March 2024.

When it comes to the scheduling of assessments, the CQC plans to use a combination of planned and responsive assessments, with planned assessments factoring in when the CQC last inspected, the level of risk, and history of enforcement; and responsive assessments taking place when there is information of concern. Evidently the CQC is continuing to use risk-based regulation rebranded as ‘responsive assessments’ and resurrecting timetabled inspections from past regimes, in the form of ‘planned assessments’, which leads us to question what has actually changed with this new regime other than the CQC legitimising its new self-imposed power to change Provider’s ratings ad hoc. Provider’s will have to be on their guard in a way they haven’t had to in the past.

KLOES, Prompts And Rating Characteristics

Under the new regulatory approach, the Five Key Questions remain (Is the service Safe, Caring, Responsive, Effective and Well-Led?). However, the KLOES, prompts and rating characteristics are replaced by 36 Quality Statements (also known as ‘We’ statements) which focus on specific topics under the Five Key Questions.

Information obtained by the CQC, under each Quality Statement will be organised and scored under six evidence categories:

• People’s experience of health and care services
• Feedback from staff and leaders
• Feedback from partners (stakeholders)
• Observation
• Processes
• Outcomes

The scoring of evidence is definitely a new feature and could be beneficial to Provider’s if used properly. This may force the CQC to consider each piece of evidence submitted by the Provider in order to score it. However, the new system will only work if there is transparency about how the CQC has scored the evidence. There should be criteria identifying how the CQC identifies the score for each evidence category, rather than a finger in the air approach.  The Provider Portal may prove useful here, enabling you to take stock of the evidence that you have submitted to the CQC pre and post inspection, and may be an opportunity for Provider’s to submit evidence of good practice to influence an upgraded rating. It will be interesting to see how much of the evidence collected and scored will be shared with the Provider. Will there be transparency about the ‘feedback from staff and leaders’ or ‘feedback from partners (stakeholders)’?

Ratings

Ratings of Outstanding, Good, Requires Improvement and Inadequate, remain but scoring will be introduced to inform the public of where the Provider lies within a rating. For example, for a rating of Good, the score will indicate if this is either in the upper threshold, nearing Outstanding or in the lower threshold, nearer to Requires Improvement.

As explained, when the CQC assesses evidence, it assigns scores to the evidence categories for each quality statement:

• 4 = Evidence shows an exceptional standard
• 3 = Evidence shows a good standard
• 2 = Evidence shows some shortfalls
• 1 = Evidence shows significant shortfalls

Ratings will be based on building up scores from quality statements to give an overall rating. This system means the CQC can update scores for different evidence categories at different times. Any changes in evidence category scores can then update the existing quality statement score and likewise the overall rating.

The scoring process includes the CQC combining evidence category scores to give a quality statement score and combining quality statements scores to give a key question score. The process also involves scores being converted into percentages to give a key question percentage

• 25 to 38% = inadequate
• 39 to 62% = requires improvement
• 63 to 87% = good
• over 87% = outstanding

Furthermore, these percentage scores are used to support benchmarking information which will be included in inspection reports and in the Provider Portal.

There has been no mention of a Rating Review process, which should arguably be available each time a Key Question or the overall rating is changed. Ridouts has extensive experience of the Rating Review process, which is already difficult to succeed at, given the limited grounds for review, but it will likely become a lot more complex as the rating will be determined by an extremely detailed and potentially non-transparent scoring system.

Reports

In a bid to make inspection reports more accessible, the CQC will produce shorter inspection reports which will include a new summary section about people’s experience of the service.  The report will also include benchmarking information in which the scoring for each quality statement that feeds into the key question ratings and overall rating is compared to other similar services in the area/country. The CQC is still testing different styles of reports but the new style of report will still use standard template text for automatic generation of statements within the report. This template approach has proved unhelpful for Providers who often require a tailored report to accurately describe their service.  Ridouts supports its clients to challenge inaccurate inspection reports. This job will be made much harder when the CQC condense reports to mere summaries using template text.

Unclear

With all the information that the CQC has circulated, what remains unclear about the new regime includes:

• Provider Information Returns – The CQC will still proactively ask Providers for information, but they are not sure if it will be in the form of Provider Information Returns. As mentioned, will the Provider Portal be a means for sharing positive information about your service at any time, not just pre-inspection.
• Factual Accuracy Comments (‘FAC’) – The CQC has said that the fundamentals of the FAC process will remain unchanged, but have also said that the process will be improved. Will the new improved FAC process be just for inspection reports or for any evidence collected by the CQC? Will the FAC process move to the Provider Portal? And will the Provider have the opportunity to challenge information/evidence from stakeholders such as local authorities? So many questions.
• Enforcement – It appears that the CQC plans to ‘improve’ its enforcement processes, but needs more time for testing this new improved process before roll-out. One change that would be welcomed is for the CQC to ensure it has sufficient evidence that meets the required threshold, passing the evidential test, before deeming that a Provider is in breach of regulations. Time and time again, Ridouts witnesses this gap in the CQC’s evidence gathering approach and its failure to carry the necessary corroboration of evidence.

There are still quite a few unknowns which are fundamental for Providers. Ridouts continues to support Providers throughout this transitional period and waits to see how this new regime impacts Providers during more challenging times such as poor ratings, negative reports and enforcement action. Provider’s should look out for further information in the form of CQC news and webinars as well as read the CQC’s guidance about the changes as it will help you prepare for assessment under the new framework.

Should you have any questions, do not hesitate to contact our team of specialist lawyers on 020 7317 0340.