Why Being Organised And Retaining Evidence Is Important, Now More Than Ever For Providers

Topics covered: challenging cqc, factual accuracy comments, health and social care providers

With a new inspection strategy, the CQC are shifting from regular routine inspections to one based on risk, underpinned by data collection. The health and social care sector, however, should be judged, in part, on service users’ experiences and the level of care they receive which is extremely difficult to capture based on data collection alone. Therefore, this new inspection strategy and a focus on risk is not without its problems. It enables and perpetuates a sceptical mind-set from CQC inspectors from the offset. We are now seeing more negative inspections as a result of this. Services that typically would have been previously rated ‘Good’ under the old regime are now often rated ‘Requires Improvement’. This is the consequence of a regulator operating in a way that  focuses on negatives under a ‘risk based approach’ as opposed to coming in with a mind-set and starting point of ‘Good’, as any fair impartial regulator should do. This article will explain, in the current context of the regulator becoming increasingly sceptical, why it is important, now more than ever, for provider’s to be prepared, and to collate, and retain evidence for use via a factual accuracy comments process (“FAC”).

What is a FAC?

FACs are the first, and most important opportunity for providers to challenge the CQC’s judgments and ratings. The CQC only gives a provider 10 working days to respond to the initial draft inspection report, so time is of the essence.  The initial draft inspection report may contain factual inaccuracies, which may have contributed to the rating received by the provider. Therefore, it is vital to challenge inaccuracies when they are identified, as this will have an impact on your overall rating which is crucial for commercial reasons. Providers need to consider that the FAC process does not provide an extended period of time whereby a provider can put any identified failings right by the end of the 10 working day period and ask the CQC to consider this under the FAC. The CQC will argue that the report is a ‘snapshot’ of what the CQC inspectors saw on the day of inspection. This means, for example, if a policy was not in place on the day of inspection, but implemented by the end of the FAC, it will not receive consideration from the CQC despite appearing to now be ‘inaccurate’. This is why it is important to be proactive and organised with evidence. By preparing for an inspection, a provider should be in a better position if one occurs unexpectedly.  Additionally, by monitoring levels of risk from data you collate and resolving any issues before it is raised to the CQC this may reduce the chance of an inspection being called under the risk-based inspection strategy.

How to prepare & the importance of evidence

Under the new inspection regime data and evidence can be as simple as the CQC collecting feedback from families of service users, servicer users themselves, or staff members. Under the new inspection framework/strategy the CQC states, it will now focus on data from several different sources. However, for convenience sake here are the main ones providers should be aware of:

  • People’s experience – Examples include
    • Service Users
    • Service Users family
  • Staff and leaders at the service – Examples include
    • Registered managers
    • All types of staff present at the service
  • Partners – Examples include
    • Commissioners
    • Other local providers
    • Multi agency bodies

Providers should be doing everything they can to be proactive in capturing and monitoring their own data as evidence.

Additionally, as a priority, they should maintain good working relationships with the above types of people mentioned. Positive relationships should always be encouraged with these particular groups of people as their opinion holds particular weight now under the new inspection regime. It can increase or decrease your rating or trigger unannounced inspections.

One way to capture data, is to hold regular meetings with staff, which should be documented in order to analyse how they feel the service is being run. Additionally, this can be extended to service users, service user’s families, and with the commissioners. These meetings are opportunities to collate feedback to improve the service, whilst monitoring if anybody feels disgruntled allowing you to respond as a provider.  Be proactive in this, do not be reactive and wait for an unannounced inspection to be triggered or for a negative inspection report in order to make any required changes. As the regulator is adapting and changing, so must providers.

With the CQC adopting a more data centric approach, providers have to adapt to this and begin to focus on data collation themselves, to present as evidence. In order to train staff, you can conduct mock interviews which emulate CQC’s inspection interviews. This will help to prepare your staff to handle the inquisitive nature of the CQC inspectors on the day of inspection.

Why is conducting a FAC so important for Providers?

There are a variety of reasons why conducting a FAC is important. Most importantly, it is the only way a provider can challenge the accuracy of the draft inspection report.  Otherwise, the CQC’s position is automatically accepted as fact if no representations are made. It gives providers a chance to rebut the CQCs position, and successful FACs can change, alter and improve the draft inspection reports wording and the overall rating.

In addition, by law, you will have to display this inspection report result, and have the report publicly available on your website as a provider, but having a robust factual accuracy challenge to go up alongside this is another important reason why FACs should be done. There is nothing to prevent providers publishing their FAC demonstrating how many factual inaccuracies there are outstanding. As a provider this can demonstrate the level and detail of the disagreement you have with the CQC. Ultimately, publication of a poor inspection result can have huge commercial ramifications. Firstly, people will look at a providers rating prior to placing a loved one there, it allows them to make a quick judgement about the standard of the home. In addition, local authorities will pay particular attention to a rating of a home, and may not admit service users there if it is below a certain rating level. Furthermore, insurance will be more costly if the home is rated lower, and it would be harder to obtain loans as lenders will also take this into consideration. Therefore a robust well evidenced factual accuracy comments response is vital if you consider that your draft report and/or rating is not a true reflection of your service.

With the introduction of the new framework and new risk based inspection regime, buzzwords like ‘smarter regulation’ and ‘data driven decisions’ are ambiguous and vague, which can be daunting for providers until further detail is published. However, with the CQC adopting a data centric approach, the providers will have to adjust alongside it. This is why it is important now more than ever to prepare and collate evidence, to give you the best chance as a provider to submit robust representations via the FAC process. However, we here at Ridouts can help advise and assist providers with this. We are bespoke specialist Health and Social Care regulatory lawyers who frequently and routinely turn around detailed Factual Accuracy Comments in a tight time frame. The benefit of consulting legal assistance is the high standard of evidence preparation and evidence review we conduct.

Our lawyers are trained to help you identify what evidence to choose and use, checking this for potential adverse implications. The extra set of experienced eyes, will ease the burden on the care home, allowing you to focus on what’s important which is to provide a high standard of care, not focusing on CQC arguments. If you need any help or assistance with the Factual Accuracy Comments process or if you would like help with, how to deal with the CQC, please contact our specialist team of solicitors on 0207 317 0340.

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