What has changed in the way the CQC regulates care homes?

According to the recent Care Quality Commission (CQC) statistics nearly half of UK care homes are 'not up to standard'. It was revealed that 36 per cent of care homes require improvement, while eight per cent are inadequate. Meaning 44 per cent of care homes across the country are below the required standard.

To the general public, particularly those with relatives in long term care, these statistics could make for shocking, even upsetting reading. However, many in the adult social care sector will recognise that the figures are reflective of a shift in what the CQC considers acceptable standards, rather than a sharp decline in the quality of care.

The fundamental standards were set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which came into force on 1st April 2015. When the CQC now inspects a service, they will focus on five key questions: is it safe; is it effective; is it caring; is it responsive to service users’ needs and is it well led. This information is used to assess how well the service provider is meeting the new fundamental standards. There is a rating for each question, as well as for the service overall, varying from outstanding to inadequate.

The fundamental standards enable providers to more easily understand what is required of them. Each regulation contains a list of things which a registered person must do to comply with the regulation and achieve the best possible rating. Inspections under the new regulations clearly take a more hardened stance. This is present in the first instance in the way the regulations are written as they now refer to what providers “must” do. In that regard, it is arguably clearer for providers as to what they need to do to demonstrate their compliance but also for the CQC to identify any issues.

Good ratings appear to be much more difficult to achieve in light of the more detailed and robust 2014 Regulations. It appears that a large number of providers are now receiving a lower rating of either Requires Improvement or Inadequate as a result of the changes. Providers are currently having to work harder to remain open to the public. Most recent data from inspections in the North of England released by the CQC in June this year shows 27 of adult care providers being rated as good with 34 sitting below the required standard (requires improvement or inadequate). However, these changes are fairly recent and the CQC is still in the process of undertaking inspections of providers under this new inspection regime. The inspections of all providers are reported to be expected to finish by April 2016.

The good and outstanding ratings are now arguably more in-line with what the public expects from a service. The assessment of the care provided is considered to be more accurate going forward as an increased level of information is expected from the service providers in terms of what they must demonstrate. The CQC appears to be spending more time within the services they inspect and carrying out comprehensive inspections to address the points listed under each regulation. As the CQC has come under heavy scrutiny in the recent years, they will no doubt want to implement the new regime as quickly and robustly as possible to regain the public’s trust and confidence in the regulator.

The public has lost a lot of faith in the CQC over the recent years, following a number of scandals such as the Mid Staffordshire scandal, which led to the Francis Inquiry. The new inspection regime is supposed to be more robust and tougher on providers. Families may therefore be more willing to rely on CQC inspection reports than they may have done in the past. They can be satisfied that the inspections are comprehensive and if there are any concerns with the service, issues will be identified, published and the appropriate action taken. Obviously, the services with Good or Outstanding ratings will continue to thrive but those who just about got through the old regime will no longer be able to hide from the CQC or the reviewing public.

It is argued that the more detailed regulations make it clearer for the providers what is expected from them and easier for the CQC to identify when someone does not comply. More worrying for providers is the CQC’s power under the new regime to prosecute providers for breaching certain regulations. This can even be done without issuing a warning notice to the provider first. The CQC can also prosecute providers for a breach under other regulations, where service users are either harmed or put at significant risk of harm.

Although the way the CQC monitors care providers has changed drastically, there is somewhat less change to the way its decisions can be challenged. The key is still to challenge the CQC as early as possible. It is even more important for providers to proactively challenge any factual inaccuracies within an inspection report or an unfair rating and try to avoid a factually inaccurate report from being published in the public domain or halt proposed enforcement action. In the case of enforcement action, any representations need to be carefully drafted, to address all relevant concerns with sufficient evidence of insight into any failings and the action the providers have taken or are taking to address the concerns within a reasonable timeframe. The CQC has to be satisfied that any potential risk to the service users can be effectively managed during a period of improvements.

In light of the new enforcement policy, the CQC no longer needs to follow the regulatory response escalator but instead uses a four stage decision making process based on their enforcement decision tree. This sets out the criteria to assist the CQC in making an enforcement decision. If a provider is rated Inadequate, the CQC will inevitably take action against them. This could include enforcement action such as suspension or special measures.

It will always be in the best interests of the care provider to maintain its compliance at all times. As soon as standards fall or poor attention is given to an area of a service, the provider is inevitably bound to be led down the slippery slope to enforcement action. Enforcement action is not the only consequence of non-compliance. Poor ratings from the CQC inspections can lead to negative publicity, loss of business and vital contracts. They can also contribute towards low morale and even loss of experienced trained staff.

Most families research a care provider either by reading newspaper articles or CQC inspection reports when deciding where to home their loved ones. One negative rating can be detrimental to the continued success of any service.

Any issues which arise should be dealt with efficiently to ensure that they do not escalate any further. When these concerns are left to develop into further, more serious concerns, any service will find it more difficult to return to full compliance. This will be particularly so now that the CQC is carrying out more robust inspections.

There are many options open to providers to assist them with continued compliance. They can consider the CQC’s Guidance for Providers on Meeting the Regulations, the providers’ handbook or the CQC’s Key Lines of Enquiry (KLOEs). The providers need to be familiar with the new inspection regime and how they can meet the fundamental standards, including staff training, which is likely to play a crucial role in the way a provider is perceived by the CQC.

Another option is to use the services of a specialist care consultant who can provide practical advice and support within the service to ensure it is compliant. If a provider ensures that they are prepared for any eventuality, are fully committed to maintaining compliance and set realistic and workable goals for the service to achieve, then there is no doubt that they can avoid a poor rating with the right procedures and policies in place. Of course, with a rating of good or outstanding, the CQC is never going to take enforcement action.

Rachel Adamson is a Partner at Stephensons and has years of experience of working with care providers.