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LEGAL VIEW: The CQC’s Transitional Monitoring Approach

Anna Ridouts

Anna-Maria Lemmer, Associate Solicitor at Ridouts, explains what care home providers should expect from the CQC’s new Transitional Monitoring Approach.

During the period of the pandemic, CQC paused routine inspections and introduced the Emergency Support Framework (“ESF”) with the intention of focusing on the immediate risks presented by the pandemic. CQC has now developed its new Transitional Monitoring Approach (“TMA”) which is meant to bring together elements of its existing methodologies relying on the approach adopted through the ESF and specifically targeting Key Lines of Enquiry (“KLOEs”) covering safety, access and leadership.

The September 2020 edition of the Ridout Report considered what CQC inspections look like in the context of ‘now, next and future’ considering what inspections are currently like and what they will be like in the future. Since publication of the last Ridout Report, CQC’s Public Board Meeting (‘CQC’s Board Meeting’) took place on 16 September 2020 and during the meeting the board discussed its new transitional regulatory approach to monitoring services. The TMA will be rolled out from 6 October 2020, starting with the adult social care and dentistry sector first, then NHS trusts from 12 October 2020 and GP’s from 19 October 2020. The TMA is expected to run until spring 2021, which is when CQC’s new inspection framework is due to be implemented.

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What is CQC’s TMA?

On 1 October 2020, CQC published guidance on what providers can expect under its transitional regulatory approach to monitoring services. In summary, CQC inspectors will review the information they hold about a service and they will then either have a conversation with a provider online or by telephone. During the conversation, inspectors will ask providers ‘monitoring questions’ which will focus on specific KLOEs. CQC’s ‘monitoring questions’ for adult social care providers can be accessed on CQC’s website at the following link: https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/monitoring-questions-adult-social-care-providers

CQC states that: “This is not an inspection and we do not rate services following a call” and providers will have the opportunity to provide evidence within 24 hours of the call. In a similar way to the ESF, the calls will be used by CQC to decide whether further regulatory action needs to be taken, for example, an inspection. CQC will produce a ‘monitoring summary record’ following the call and its guidance states: “This record is not an inspection report, and there is no rating as a result. This means that usual steps such as the factual accuracy process do not apply.”

CQC’s Board Meeting helped to shed some light on what CQC’s transitional regulatory approach will look like but until the new approach is rolled out, it is hard to know what the TMA will look like in practice. I have summarised the main points from CQC’s Board Meeting regarding its transitional approach in the table below and the potential resulting implications that providers should be aware of:

What will happen under the new TMA?  What are the implications of CQC’s intended action for providers?
Frequency of inspections CQC will not return to its fixed timetable of inspections nor its frequency-based inspections given the pressures on providers and the risk of spreading infection.

 

 

Routine comprehensive inspections have previously been scheduled according to a prescribed timescale. Inspections were expected to take place within 30 months of publication of a report for a service rated ‘Good’ or ‘Outstanding’, within 12 months for a service rated ‘Requires Improvement’ and within 6 months for a service rated ‘Inadequate’. Of course, CQC could re-inspect at any time if it deemed it was necessary for example if CQC had concerns.

 

The significance of CQC not returning to frequency based inspections is that providers’ ratings can remain unchanged for a long period of time. This is a good thing for providers who are rated as ‘Outstanding’ because having an ‘Outstanding’ CQC rating indicates to prospective clients and commissioners that the service being provided is performing exceptionally well.  Many providers who are rated as ‘Good’ will also be happy with their rating and happy for it to remain in place until CQC carries out another inspection. However, for some providers who are striving to have their ‘Good’ rating uplifted to ‘Outstanding’ it will be disappointing.

 

The providers that will be most negatively impacted by CQC not returning to its frequency based inspections are those that are rated as ‘Requires Improvement’ and who want their rating to be uplifted to ‘Good’. A ‘Requires Improvement’ rating means that a service is not performing as well as it should and it has been told by CQC that it must improve. A ‘Requires Improvement’ rating is often unfair because a single alleged breach of regulation under one of the five key questions (is the service safe, effective, caring, responsive and well-led?) means that a service will be rated ‘Requires Improvement’ overall, even if all the other four key questions are rated ‘Good’.

 

As many providers will know, CQC inspection reports and resulting ratings are often based on the subjectivity of individual inspectors and once an inspection report is finalised it is published on CQC’s website. A member of the public reading an inspection report will rely on the rating provided by CQC in that inspection report and misleading inspection reports may paint a poorer picture of a service than what is actually the case.

 

Providers who have a ‘Requires Improvement’ rating have a competitive disadvantage to other providers in the local area which are rated as ‘Good’ or ‘Outstanding’ as prospective service users, families and commissioners are more likely to engage services with a higher rating and will want to avoid those that have been rated as ‘Requires Improvement’.  If a service receives fewer admissions as a result of its ‘Requires Improvement’ rating, this can impact on a provider’s revenue stream which in turn can lead to financial pressures on a business. A ‘Requires Improvement’ rating may also impact on a provider’s ability to recruit and retain staff.

 

How will CQC monitor risk in a service and respond to changes with regulatory action?

 

CQC’s monitoring activity will focus on using its existing KLOEs, with an emphasis on safety, access and leadership, but also including some elements of all five key questions. This monitoring is meant to enable CQC to be more targeted and responsive in its regulatory activity.

 

During the monitoring call, the inspector will record the discussion around the questions raised with the provider, specific risks identified and examples of good practice and improvements to the service.

 

Inspectors will review all available information about a service. This includes previous inspection reports and ratings, monitoring information collected through CQC’s usual data sources and an inspector’s knowledge of a service.

 

Inspectors will determine the level of risk within a service and decide what action needs to be taken in response – for example, collecting further information from people who use services to help confirm its judgment or undertaking on-site activity.

 

There will be a focus on providers where CQC has concerns.

 

CQC claims that its new TMA will be supportive in a similar way to the ESF but will capture a much broader range of topics as part of the monitoring process. Whilst CQC described the ESF as being supportive, inspectors were still gathering information during the ESF conversation and could carry out a focused inspection on the back of the information gathered through the ESF, therefore, it was far more than a supportive conversation.

 

In the TMA guidance, CQC states that it will “not make an audio recording of the calls apart from in exceptional cases. If we think a recording is necessary, we will obtain your consent at the start. We do not expect you to record the call.” Regulatory action could be taken following a TMA conversation and so providers should be wary of the new approach to monitoring activity. It is also very important that providers do make a record of what was discussed during the conversation in case CQC takes further enforcement action down the line and providers need to rely on their record of the conversation.

 

CQC states that its monitoring approach will involve remote assessment of data and will focus on using its existing KLOEs. If CQC’s monitoring activity involves remote assessment of data, whether or not this is a positive thing will depend on the quality of the data and information being gathered by CQC and how inspectors apply it. It is also important that the data and information gathered by CQC is verified before it is allowed to impact on CQC’s assessment of risk. This is particularly important where CQC is relying on information provided by third parties, as often third party information can be subjective.

 

On-site inspections CQC will continue to inspect where it has concerns about care and will take action to protect people if necessary.

 

CQC wants to make an accurate assessment of quality while minimising infection control risks and therefore wants site visits to be more targeted and driven by the information it holds on a service.

 

On-site inspections will be limited to obtaining evidence that cannot be obtained by other means.

 

The starting point of any CQC comprehensive inspection is for inspectors to assess performance of a service by looking for ‘Good’ in relation to each of the five key questions. During on-site inspections, inspectors are able to witness first-hand the interactions between staff and service users which is particularly important when CQC is determining whether a service is caring. On-site inspections also allow providers the opportunity to showcase the areas of a service that are doing well.

 

Under the TMA, there is a shift away from looking at ‘Good’ to looking at risk. If CQC relies on data and information gathered to inform whether or not an on-site inspection takes place, it is important to know how much weight is going to be placed on the information gathered. If CQC inspectors are limited to assessing risk when they carry out an inspection, it is possible that other good care being provided by a service may be overlooked by CQC on the day of an inspection. This could lead to information being skewed and increased enforcement action by CQC as a result.

 

This highlights why it is important for providers to be able to challenge CQC’s alleged findings through the factual accuracy comments process. CQC’s TMA guidance states that following a TMA call, CQC will send a monitoring summary record to a provider and that “This record is not an inspection report, and there is no rating as a result. This means that usual steps such as the factual accuracy process do not apply.”  This is concerning because there should be a fair and effective process to allow providers to challenge any of CQC’s inaccurate and misleading findings.

 

How will CQC rate providers and report on findings? Following monitoring activity using the KLOEs, no further action will be taken by CQC if it is determined that the level of risk is low.

 

Over time, CQC will publish a short statement on its website to say that the service has been reviewed and CQC is taking no further action. In CQC’s Board Meeting, the Board stated  that, “Before we do this, we first want to work with people who use services to ensure what we publish works for them. We will also share a short summary directly with the provider.”

 

If monitoring activity leads to an inspection, CQC will use its existing inspection methodologies which means it will look at any or all of the KLOEs on inspection. However, as inspections will be targeted and focused around areas of risk, they may not cover all aspects of the five key questions and KLOEs. As a result, inspections may not always lead to a change in rating for a service.

CQC states that before publishing a statement on its website to say that a service has been reviewed and no further action will be taken by CQC it wants to ensure that what it publishes works for service users, quite how this will work in practice is yet to be seen.

 

Under the TMA, inspections will be targeted and focused on risk and the main implication of this is that it is unlikely that all aspects of the five key questions and KLOEs will be looked at during an inspection and therefore a provider’s rating is unlikely to change. The downsides of a rating remaining unchanged are explained above in relation to the section ‘Frequency of inspections’. For providers who feel that their current CQC rating was not indicative of the service provided at the time of the inspection or is no longer indicative of the service being provided, they are unlikely to welcome the risk focused approach under the TMA..

 

In a statement published by CQC on 16 September 2020, CQC stated that “Although we’ll be able to re-rate a service in a limited number of cases, this varies in practice between the sectors we regulate. We’ll continue to update you through our Chief Inspectors’ blogs and our updated guidance for providers, so that you know what to expect for your sector.”

 

CQC’s TMA guidance and ‘monitoring questions’ published on 1 October 2020 has provided some information on what providers can expect but we will need to see how the TMA works in practice and in the meantime providers should start to consider what evidence they can provide to CQC to highlight how well it is performing.

 

What are the risks for providers with CQC’s transitional regulatory approach?

The table above summarises CQC’s intended actions under the TMA and the implications of each action on providers. Under the new TMA, CQC intends not to return to its fixed timetable of inspections (although it has said that it will need to consult on this) and will focus on services where it has concerns only carrying out targeted inspections focused on risk. This means that providers’ ratings may remain unchanged for a long period of time.  This is of particular significance to providers who are rated as ‘Requires Improvement’ as they may struggle to attract new business from potential clients and commissioners and this in turn can impact on the financial viability of a service.

Conclusion

CQC’s position is that its approach to regulation is constrained by the pandemic and whilst this may be the case, there is a risk that CQC’s ‘desk-top’ style monitoring reviews which will take place under the new TMA could lead to unfairness with providers’ ratings remaining unchanged for long periods of time. Under the TMA, CQC inspectors will be limited to assessing risk during on-site inspections which might mean that they miss positive evidence available on the day of an inspection. In turn this could lead to a skewed interpretation of what a service is actually like and it could lead to CQC taking enforcement action. Worryingly, CQC’s position is that because a monitoring summary record is not an inspection report and there is no rating as a result, “usual steps such as the factual accuracy process do not apply.”  It is crucial that providers are given the opportunity to challenge CQC’s incorrect or misleading findings through the factual accuracy comments process.

In CQC’s Board Meeting, it said: “Our risk model and monitoring activity helps prioritise services where there may be a greater level of risk and helps identify what a proportionate response might be.”  Whilst CQC’s intelligence led risk monitoring approach suggests that CQC will be able to assess risk in real time which is a good thing, there is a chance that information will be missed and it all depends on the accuracy of the intelligence gathered by CQC. CQC needs to ensure that any information gathered is properly verified and used to inform proportionate decision making.

It is very important for providers to challenge misleading or inaccurate CQC draft inspection reports through the factual accuracy comments process as this is a provider’s only opportunity to challenge the factual content of a report. Sometimes providers decide not to challenge reports because they either do not think that it will make any difference or they do not want to damage an existing relationship with their inspector. However, the consequences of not challenging an inaccurate report can be very serious. If an inspection report goes unchallenged and it is subsequently published, there is a presumption that the report is accurate and the content of the report becomes the truth.

Often criticisms in an inspection report can form the basis of escalating enforcement action. If providers challenge any inaccuracies found by CQC during TMA inspections at the outset, this can help to minimise the effects of further enforcement action later down the line. If you require assistance or advice in relation to any issues with CQC, our specialist solicitors can help. Please contact Ridouts Professional Services Plc using the email address info@ridout-law.com or by calling 0207 317 0340.

 

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The author Lee Peart

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