A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Building on the previous focus on quality and governance, the CQC has made a clear statement that the question of whether a care provider is “well-led” now extends beyond the front-line, to those ultimately responsible for services. The proposed changes will be effective from April 2018. The key themes arising from the second stage of this consultation include:
1. Broadening the net of registration and regulation
It will come as no surprise that the CQC has renewed its focus on good governance. Those with responsibility for the operation of a service must take steps to actively engage with quality monitoring and react to risks as they arise. The current position is that only the organisation ‘carrying on’ the regulated activity must register. The CQC is proposing that any “related organisations, such as parent companies, which also have accountability for quality” will need to register. For large group organisations, this means that parent companies several levels above the provider delivering the service will need to register; members of the group board will also become subject to additional duties under the Care Act 2014.
2. Introducing a new ‘provider’ rating and maintaining service history
As part of increasing consumer awareness and transparency in the sector, the CQC is proposing to introduce an overall rating for providers, in addition to ratings for each service type or service location. It is easy to see the benefit if individuals have easier access to information about their care provision, and increased visibility in the market should be a driver for improving quality. What is less clear at this stage is how this rating will reflect quality ‘on the ground’. Organisations provide a mixture of (often complex) service types or look to take on failing services, with the aim of improving them over time.
3. Publishing enforcement actions before the appeals process has concluded
In addition to the broader regulatory changes proposed, the CQC wants to publish details of its enforcement actions earlier rather than waiting for the provider to submit representations. This is extremely concerning, given the restrictive nature of the current appeals process, the consequences for providers making declarations in future tenders, and the potential impact on provider-wide reputation. We consider that this is likely to result in judicial challenge.
4. Moving away from property-based registration
The CQC has recognised that services are not always operated from one location and it will look instead to register services based on geographical areas. This will often be difficult to define, particularly in relation to domiciliary care, as supply and demand can mean frequent changes to a provider’s ‘local’ market.
The CQC is also amending its regulation records so that the service history remains with the location, rather than with the original provider. It will be interesting to see how this develops, particularly as the CQC’s current guidance reflects its understanding that good and outstanding providers often experience an overall drop in ratings when taking over inadequate/needs improvement services, before improvement.
5. Increasing pressure on innovation and improvement
There will be an increased focus on providers who are repeatedly rated ‘requires improvement’ or failing to address problem areas in their organisation. The consultation also sets out a clear intention for the CQC to engage in the discussions regarding the integration of health and social care. We are aware that many providers are already looking at ways they can share best-practice and learn from successful innovations and we would hope that this will, in turn, encourage the CQC to view new ways of working as opportunities rather than untested risks.
6. Introducing an annual self-reporting obligation
As part of its drive to use information more effectively, the CQC is proposing to introduce an online form that providers will be required to complete annually (as a minimum) rather than as preparation for an inspection. It remains uncertain what the CQC aims to achieve from sharing information with “local authority commissioners, providers and other stakeholders”; a perpetual ‘value for money’ fee review by the regulator will have a serious impact on competition in the market, particularly where this information is shared with commissioners.
7. Increasing the time between inspections of ‘good’ and ‘outstanding’ services
As its monitoring improves, the CQC plans to increase the maximum timescales between planned comprehensive inspections:
- from two to two-and-a-half years, for services rated as good; and
- from two to three years, for services rated as outstanding.
However, the CQC is likely to increase the frequency of focused and unannounced/short-notice inspections for these providers as part of its ‘monitoring’ activity. Unless the CQC will genuinely work in partnership to improve ailing services, this additional scrutiny will inevitably add to the regulatory and financial burden with an inevitable increase in enforcement.
8. Expanding the ‘fit and proper persons’ criteria
In response to concerns as to how to assess whether a person is ‘fit and proper’ for the purposes of the Care Act 2014 (and associated Regulations), the CQC has provided guidance as to what constitutes ‘serious misconduct and serious mismanagement’. Although it remains for the provider to determine what constitutes a “serious” breach, this is now expected to include “repeated or ongoing tolerance of poor practice”, as well as a “continued failure to develop and manage business, financial, or clinical plans”. Whilst we agree that poor practice should not be tolerated, the guidance risks creating a very high standard for directors to satisfy. This is especially the case where no such obligation is placed on commissioners and funders who have a significant influence over the resources that determine organisations’ business plans and policies.
Whilst we expect that all providers will welcome a “more proportionate, targeted and responsive approach to inspection”, there is a risk the CQC’s proposals will lead to an inspection at provider level that focuses on “tick box” compliance. It won’t necessarily have the sophistication or the operational experience to understand what a good or outstanding head office function will feel like. It will be important that this doesn’t shift scrutiny away from the front-line and towards the governance of individuals not directly involved in the care provision. There is a question as to whether this will ensure safe and quality services for vulnerable individuals or result in effective regulation for care providers.
You can respond to the consultation by 8 August, by clicking here.
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