Ridouts hosted a round table discussion with providers to discuss the developing CQC regime, to consider what was happening, share knowledge and discuss the potential impact of the regime on businesses. Between them, the providers have nearly 60 homes, so had a wealth of experience to share. The discussions were wide and varied but the three main themes that we covered were:
- The new inspection regime, the effects of the new scoring system, the anticipated FAC process and potential concerns
- How the Provider Portal will help or hinder provider relationships and the flow of information
- The impact of the new visitor regulations coming into force in April 2024
The New Inspection Regime
The morning started with Caroline Barker, Head of Marketing and Compliance at Ridouts, highlighting some potential concerns about inspections under the new Single Assessment Framework. The CQC is seemingly moving more towards using the term ‘assessment’ rather than inspection. If the CQC carries out an inspection then it is obliged, by law, to produce an inspection report and send it to the provider for review/checks. Caroline queried whether reference to ‘on-going assessment’ was a way to circumvent the production of a draft inspection report and therefore the process of factual accuracy challenges.
Whilst the new regime was introduced, in part, to provide more up-to-date ratings, to date, what the sector had seen was not resulting in ‘on-going’ inspection and the scoring system was potentially flawed. It was noted that for the two inspection reports that had been produced and published under the new regime, so far, the CQC had only reviewed 14% of the Quality Statements leaving the majority of the “current” rating, based on historic ratings of about 6 years old. This raises concerns about the reliability of reports, and of, course, the ability to challenge historical facts which make up the majority of your current rating.
It was reported from one provider that the CQC “petrified” staff and they felt that the CQC came into a service with an agenda. This would, of course, tie in to the CQC’s emphasis over the last three years of undertaking inspections on the basis of risk. No longer going in to look for “Good”, the CQC is looking for evidence to support the information which prompted the inspection in the first instance. Discussions turned to the emphasis that the CQC is placing on showcasing service user voice throughout reports. One provider explained that they had reports from family members who had spoken to the CQC for an hour and a half and felt that the CQC was trying to “trip” them up. The general feeling was that the CQC was coming in to focus on negatives, rather than positives.
Ratings are fundamental to a provider’s business yet most people do not look past the headline rating. Parallels have been drawn recently between Ofsted and the CQC’s systems, following the Ruth Perry Inquest and the Education Select Committee’s recommendations which include a recommendation to move away from single word ratings and ratings limiters. Whilst the CQC rating headlines were taken from the Ofsted system, the CQC has said that it does not have single word ratings as it provides a narrative in the report. Its approach is no different to Ofsted, yet the CQC appears to be somehow differentiating itself. It has also stated that it does not have rating limiters, but clearly does.
It was highlighted that there appeared to be no internal criteria for inspectors to make the judgments. Questions arose regarding how an inspector will determine where a provider sits within a judgment range? Will it be subjective? Will they be said to have used their professional judgement? One of the reasons for the introduction of the Single Assessment Framework was due to the inconsistency between inspectors and regions that have been highlighted by providers over the years. The scoring system has been set up to ensure there is greater consistency however, if there are no objective criteria against which inspectors benchmark, then the system runs the risk of not solving one of the problems it was introduced to improve. A provider noted that previously, CQC inspectors would be reasonable in the exercise of their professional judgement, giving providers the opportunity to remedy something at inspection which meant that more minor concerns were corrected and would not appear in an inspection report. Now it was felt that the CQC would include such remedial minor matters that would disproportionately feature in the reports.
Everyone agreed that providers should be prepped for the CQC to inspect at any time. It was discussed that having folders of evidence to showcase the positive and good work examples that providers were doing was important, although one provider reported that CQC inspectors had previously dismissed this type of evidence. Whilst it could be argued that if inspectors are physically present in a service they should use this time to observe care as paperwork could be looked at remotely, this only works if the provider portal enables providers to share documentation with the CQC.
Provider Portal
This lead us on to discuss the provider Portal and how we considered it might work moving forward. Laura Shelton, Senior Associate shared the views of the CQC from the Care Show last year, who had voiced their concerns about how the new portal would work in practice and that providers may simply bombard the Portal with paperwork which may be unworkable for them. It is entirely understandable that providers may feel the need to do this if they do not feel listened to by the CQC or they feel that the focus is on looking for the negative.
At present, not all providers have access to the Portal, and it has limited functionality. Ridouts is currently assisting a provider with factual accuracy comments to a report under the new regime. They have not been given Portal access, but simply a link to the draft report. The link does not enable attachments to uploaded. Whilst evidence to support submissions will be emailed, we hope that this is a functionality issue that will be rectified as the system develops, rather than an attempt to limit meaningful challenge. Additionally, if supporting documentation needs to be sent to the CQC outside of the Portal, then again, it rather defeats the purpose of the Portal by having one central place where all information is available to both parties. One provider shared that they have CCTV with sound in communal areas, which has proved invaluable in verifying the accuracy of CQC reports.
Concerns were raised, generally, about the roll out of the Portal and understanding its functionality. The CQC has said that providers will be able to see all information it holds on them. Caroline and Laura questioned the reality of this, knowing that often discussions are being had with commissioners or third-parties without the provider’s knowledge, especially when the CQC is considering taking action against a provider. One provider raised the point that the portal was managing its regulatory data, and questioned whether providers would be deemed to be in breach if it was unable to use the system. We all know the difficulties that can arise from a change of IT system at work, and it takes time to embed and get used to it. However, the CQC was essentially asking providers to use the system without having had access to look at its functionality.
Laura Shelton highlighted that, in her experience, the CQC had moved away from a collaborative approach with providers. This was supported by two providers experience. Both had been told that they were not allowed to email inspectors directly, but rather asked to send emails to the CQC’s Enquiries email address. The CQC has introduced larger teams, including assessors for off-site assessments and inspectors for onsite inspections. One provider thought that having a larger team to deal with could result in a fairer approach for providers, rather than having one point of contact. However, Laura highlighted that, in her experience, no one was taking ownership of matters under the new regime. She explained that providers were dealing with different members of CQC all the time.
Visitors Regulations
Discussions moved onto the new Visitor Regulations that are coming into force on 1 April 2024. The regulations arose out of the Covid pandemic when, for good reason, some restrictions were placed on visits to care homes. The providers felt that the new regulations were largely not required as they had facilitated visits and managed them appropriately all the way through Covid. It was highlighted that providers were always required to help service users maintain community connections under Regulation 10 of the Health and Social Care Act (Regulated Activities) Regulations 2014, but with the new regulation we may see a “double breach” – under Regulation 9A and 10. Caroline Barker noted that the Guidance issued by the CQC in respect of the new regulation was, of course, CQC’s interpretation of the legislation itself. The CQC’s Consultation on the Guidance was a very interesting read as it asked the reader how strongly they agreed or disagreed with whether the guidance covered certain things, not whether it was a fair interpretation of the legislation.
It was highlighted that during any work that Ridouts undertakes with providers it will always take the CQC back to the legislation and what the law requires. Laura Shelton summed up the feeling well by questioning how we had got a regulatory system where we have to talk so much about getting the regulator to follow the law.
It was great to share and exchange ideas and Ridouts would like to thank all the providers who participated. We’d love to know about your experiences and whether they mirror the above or are different.
To hear more about Ridouts thoughts and views on the emerging CQC regime and wider sector issues, head to our website www.ridout-law.com. You can also subscribe to our Newsletter to receive news and commentary straight to your inbox at, www.ridout-law.com/subscribe.
What Is The Impact Of The New CQC Regime On Providers?
Ridouts hosted a round table discussion with providers to discuss the developing CQC regime, to consider what was happening, share knowledge and discuss the potential impact of the regime on businesses. Between them, the providers have nearly 60 homes, so had a wealth of experience to share. The discussions were wide and varied but the three main themes that we covered were:
The New Inspection Regime
The morning started with Caroline Barker, Head of Marketing and Compliance at Ridouts, highlighting some potential concerns about inspections under the new Single Assessment Framework. The CQC is seemingly moving more towards using the term ‘assessment’ rather than inspection. If the CQC carries out an inspection then it is obliged, by law, to produce an inspection report and send it to the provider for review/checks. Caroline queried whether reference to ‘on-going assessment’ was a way to circumvent the production of a draft inspection report and therefore the process of factual accuracy challenges.
Whilst the new regime was introduced, in part, to provide more up-to-date ratings, to date, what the sector had seen was not resulting in ‘on-going’ inspection and the scoring system was potentially flawed. It was noted that for the two inspection reports that had been produced and published under the new regime, so far, the CQC had only reviewed 14% of the Quality Statements leaving the majority of the “current” rating, based on historic ratings of about 6 years old. This raises concerns about the reliability of reports, and of, course, the ability to challenge historical facts which make up the majority of your current rating.
It was reported from one provider that the CQC “petrified” staff and they felt that the CQC came into a service with an agenda. This would, of course, tie in to the CQC’s emphasis over the last three years of undertaking inspections on the basis of risk. No longer going in to look for “Good”, the CQC is looking for evidence to support the information which prompted the inspection in the first instance. Discussions turned to the emphasis that the CQC is placing on showcasing service user voice throughout reports. One provider explained that they had reports from family members who had spoken to the CQC for an hour and a half and felt that the CQC was trying to “trip” them up. The general feeling was that the CQC was coming in to focus on negatives, rather than positives.
Ratings are fundamental to a provider’s business yet most people do not look past the headline rating. Parallels have been drawn recently between Ofsted and the CQC’s systems, following the Ruth Perry Inquest and the Education Select Committee’s recommendations which include a recommendation to move away from single word ratings and ratings limiters. Whilst the CQC rating headlines were taken from the Ofsted system, the CQC has said that it does not have single word ratings as it provides a narrative in the report. Its approach is no different to Ofsted, yet the CQC appears to be somehow differentiating itself. It has also stated that it does not have rating limiters, but clearly does.
It was highlighted that there appeared to be no internal criteria for inspectors to make the judgments. Questions arose regarding how an inspector will determine where a provider sits within a judgment range? Will it be subjective? Will they be said to have used their professional judgement? One of the reasons for the introduction of the Single Assessment Framework was due to the inconsistency between inspectors and regions that have been highlighted by providers over the years. The scoring system has been set up to ensure there is greater consistency however, if there are no objective criteria against which inspectors benchmark, then the system runs the risk of not solving one of the problems it was introduced to improve. A provider noted that previously, CQC inspectors would be reasonable in the exercise of their professional judgement, giving providers the opportunity to remedy something at inspection which meant that more minor concerns were corrected and would not appear in an inspection report. Now it was felt that the CQC would include such remedial minor matters that would disproportionately feature in the reports.
Everyone agreed that providers should be prepped for the CQC to inspect at any time. It was discussed that having folders of evidence to showcase the positive and good work examples that providers were doing was important, although one provider reported that CQC inspectors had previously dismissed this type of evidence. Whilst it could be argued that if inspectors are physically present in a service they should use this time to observe care as paperwork could be looked at remotely, this only works if the provider portal enables providers to share documentation with the CQC.
Provider Portal
This lead us on to discuss the provider Portal and how we considered it might work moving forward. Laura Shelton, Senior Associate shared the views of the CQC from the Care Show last year, who had voiced their concerns about how the new portal would work in practice and that providers may simply bombard the Portal with paperwork which may be unworkable for them. It is entirely understandable that providers may feel the need to do this if they do not feel listened to by the CQC or they feel that the focus is on looking for the negative.
At present, not all providers have access to the Portal, and it has limited functionality. Ridouts is currently assisting a provider with factual accuracy comments to a report under the new regime. They have not been given Portal access, but simply a link to the draft report. The link does not enable attachments to uploaded. Whilst evidence to support submissions will be emailed, we hope that this is a functionality issue that will be rectified as the system develops, rather than an attempt to limit meaningful challenge. Additionally, if supporting documentation needs to be sent to the CQC outside of the Portal, then again, it rather defeats the purpose of the Portal by having one central place where all information is available to both parties. One provider shared that they have CCTV with sound in communal areas, which has proved invaluable in verifying the accuracy of CQC reports.
Concerns were raised, generally, about the roll out of the Portal and understanding its functionality. The CQC has said that providers will be able to see all information it holds on them. Caroline and Laura questioned the reality of this, knowing that often discussions are being had with commissioners or third-parties without the provider’s knowledge, especially when the CQC is considering taking action against a provider. One provider raised the point that the portal was managing its regulatory data, and questioned whether providers would be deemed to be in breach if it was unable to use the system. We all know the difficulties that can arise from a change of IT system at work, and it takes time to embed and get used to it. However, the CQC was essentially asking providers to use the system without having had access to look at its functionality.
Laura Shelton highlighted that, in her experience, the CQC had moved away from a collaborative approach with providers. This was supported by two providers experience. Both had been told that they were not allowed to email inspectors directly, but rather asked to send emails to the CQC’s Enquiries email address. The CQC has introduced larger teams, including assessors for off-site assessments and inspectors for onsite inspections. One provider thought that having a larger team to deal with could result in a fairer approach for providers, rather than having one point of contact. However, Laura highlighted that, in her experience, no one was taking ownership of matters under the new regime. She explained that providers were dealing with different members of CQC all the time.
Visitors Regulations
Discussions moved onto the new Visitor Regulations that are coming into force on 1 April 2024. The regulations arose out of the Covid pandemic when, for good reason, some restrictions were placed on visits to care homes. The providers felt that the new regulations were largely not required as they had facilitated visits and managed them appropriately all the way through Covid. It was highlighted that providers were always required to help service users maintain community connections under Regulation 10 of the Health and Social Care Act (Regulated Activities) Regulations 2014, but with the new regulation we may see a “double breach” – under Regulation 9A and 10. Caroline Barker noted that the Guidance issued by the CQC in respect of the new regulation was, of course, CQC’s interpretation of the legislation itself. The CQC’s Consultation on the Guidance was a very interesting read as it asked the reader how strongly they agreed or disagreed with whether the guidance covered certain things, not whether it was a fair interpretation of the legislation.
It was highlighted that during any work that Ridouts undertakes with providers it will always take the CQC back to the legislation and what the law requires. Laura Shelton summed up the feeling well by questioning how we had got a regulatory system where we have to talk so much about getting the regulator to follow the law.
It was great to share and exchange ideas and Ridouts would like to thank all the providers who participated. We’d love to know about your experiences and whether they mirror the above or are different.
To hear more about Ridouts thoughts and views on the emerging CQC regime and wider sector issues, head to our website www.ridout-law.com. You can also subscribe to our Newsletter to receive news and commentary straight to your inbox at, www.ridout-law.com/subscribe.
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