As the Care Quality Commission (CQC) plans its regulatory approach moving forwards, in this briefing, we discuss the CQC’s transitional monitoring approach and its practical impact on service users and providers alike.

It was interesting to attend the CQC webinar on Monday on its transitional monitoring approach. The messages from the CQC can be summarised as follows:

The CQC will conduct reviews on a monthly basis of all of the information they hold about services and will use these reviews to prioritise its activity.

Where it is determined that there is no evidence that a service’s rating needs to be reassessed, a short public statement will be published on that service’s webpage. The CQC indicate that each month around 60% of providers will have the statement published on their webpage. The CQC will conduct a range of sample inspections to check services issued with a public statement although anecdotal evidence suggests few if any such inspections have so far taken place.

Where the review indicates that reassessment is necessary, further monitoring will be undertaken – whether through a monitoring call or an inspection.

The transitional monitoring approach appears to leave both those inspected and those not inspected in a difficult, and plainly unsatisfactory position. It is clear that any inspections under the monitoring approach are likely to be focussed rather than comprehensive inspections. This can leave providers with an overall rating of “Requires improvement” or “Inadequate” based on the findings of the inspection combined with historic ratings for key questions that have not been considered for some time (in many cases 2 years). Where providers feel that they have made improvements in relation to other key questions which the CQC do not propose to inspect, they should request in writing that the inspection is broadened and provide the reasoning and basis for this request. Even if the CQC ignore this request, the fact it was made can be used to argue unfairness and lack of proportionality in the CQC’s approach whether that be through a factual accuracy check, ratings review or complaint.

It is also clear that inspections will be prompted by risk and concern and that inspectors’ mindsets will likely be targeted on that risk and concern, rather than the good practice undertaken by providers. Where providers consider that the inspection is ignoring positive evidence, once again a documented request to widen the inspection should be made.

Even the public statement used by the CQC for providers who are not going to be reassessed only mentions that people can contact them to raise complaints about a service rather than to provide compliments. As a result, it appears clear that the present inspection strategy will inevitably result in an increasing number of poor ratings, with little opportunity for ratings to improve.

It is plain from the CQC that they do not have the capacity to assess every provider for improvement and providers looking to move from “Good” to “Outstanding” will likely have to wait. Whilst everyone appreciates that the CQC’s main focus is to prevent service users from harm, surely part of this includes praising and exemplifying best practice? At a time when the sector has been through (and importantly is still going through) unprecedented and difficult times, the CQC’s position could lead to staff morale dropping and damage to the reputation of the sector.

The CQC has been clear that the very fact a provider is “Requires improvement” and has been for some time, may not be sufficient to prompt an inspection. This leaves providers in a difficult position in the sense that a rating provided in, for example, 2019, following which significant improvements etc have been made could still be the rating that controls their practical operation; for example, is required to be featured on their website and impacts their ability to tender for contracts and seek insurance.

The CQC has said they will inspect to consider improvement if a provider’s current rating is causing problems with capacity in the system. We anticipate that this is to cover situations where ratings are impacting the ability of local authorities and clinical commissioning groups to commission care (for example, where there are no providers rated “Good” with available capacity), rather than where a rating is causing operational issues solely impacting the provider. That being said, we would advise any provider who feels that their rating is affecting their viability to contact their inspector and ask for an inspection.

Whilst the impact on providers is discussed above, in our view, this approach also has a negative impact on service users. Many providers will have hugely out-of-date ratings that do not reflect the true position with the service. How much trust can service users have in the public statement? And how will the CQC address the issue of ensuring closed cultures are identified? But also, many service users will be left without an opportunity to praise the services and care workers that have supported them through the difficulties of the last two years.

With this transitional monitoring approach potentially being treated as a test period for deciding the approach the CQC takes moving forward we would urge providers to raise concerns with their inspectors, make use of the factual accuracy and rating review processes and continue to advocate for a fairer and proportionate system for service users and providers alike. In the clearest examples of unfairness, it may also be possible to challenge the CQC’s approach in the Courts.

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If you have any questions or would like support in challenging the CQC, please contact the regulatory team.