Maddi Gaunt, solicitor at Ridouts Professional Services plc, considers the CQC’s proposals on a new, more flexible, approach to rating care providers’ services as part of its new strategy. The approach to ratings as we know it may be no more, and whilst a more flexible approach is warranted the proposals are lacking in detail. Maddi considers the new approach and discusses some of the pitfalls which could arise if an approach to flexibility were adopted without appropriate safeguards being in place for providers.

The Care Quality Commission (“CQC”) are currently consulting on their new strategy, which will come into force later this year. As part of this consultation process, they have sought views on a new, more flexible approach to rating providers and their services.

Rightly or wrongly, CQC ratings can have significant commercial implications for a provider. Some providers will, for example, not be able to receive commissions if they are rated Inadequate. From a private paying perspective, Outstanding providers are able to charge significantly more than those which are rated Good (or lower), or lower rated and can often attract investment which may not be possible with other ratings. Negative ratings can attract bad publicity. In some cases, a rating can make or break a provider’s business.

Even before Covid-19, the ratings process was in many ways an imperfect and outdated way of providing information to the public on a service’s current standards. Ratings are often published months and months after an inspection takes place, by which time many of the judgments underlying them are entirely out of date. For Good services, ratings were often not re-assessed for a number of years, over which time a service could have deteriorated (or indeed improved) significantly.

To some extent, the latency of the pre-Covid-19 system was mitigated because providers knew that they would be likely to expect a further periodical inspection within a certain period and could therefore work to some form of expected timetable to help them manage the commercial implications of a certain rating. They could, for example, be relatively confident that a Good rating would remain for approximately 2 years unless an incident or information arose which gave the CQC cause for concern in the meantime. However, the CQC have now suspended routine periodical inspections and some providers are now left with a rating which may not be reflecting of the service currently, with absolutely no indication if it will ever be revisited, or what criteria will apply when it does.

We are also still seeing significant inconsistencies in ratings judgments, suggesting that they are somewhat unpredictable, in addition to ongoing changes of approach in the CQC over the course of the Covid-19 pandemic. They have, for example, significantly shifted in their approach during Covid-19 towards a “reactive” inspection approach and have become much more aggressive on enforcement matters, both of which are likely to affect ratings judgments.

Further, the current process for challenging ratings is significantly limited. There is some scope to do so in response to a draft inspection report in the Factual Accuracy Comments process, but unless ratings are changed before the final report, providers have only limited opportunity to bring a formal ratings challenge through the Ratings Review process, or by embarking on expensive and time consuming litigation against the CQC.

To that end, there clearly is merit in updating and improving the system of ratings. The CQC appear to be indicating that they will approach ratings more flexible, which is to be welcomed in theory, but unfortunately, the devil will be in the detail, and the detail in the CQC’s consultation is somewhat lacking.

If ratings are to continue to have such significant commercial implications for providers, it is important that they are current, accurate and present an up to date picture of the service, which is properly contextualised so the public can understand the basis for them. Reform should therefore focus on ensuring that ratings serve this purpose and a more flexible approach may well help. We do, however, have some concerns about the CQC adopting too “flexible” an approach.

Flexibility is all very well, and is important, but this must not be at the expense of uncertainty or a lack of transparency in CQC activity. It would be a concern if the CQC were simply allowed to be flexible at whim, and there needs to be sensible policy and process guidance for providers so they can properly understand the scope of the CQC’s discretion on these matters, and how they will be applied. This is critical so that providers can at least a proper understanding of the CQC’s regulatory framework, a legitimate expectation of how the CQC will conduct ratings activity, and properly hold them to account when necessary. At the same time, there will be a balance to be had; over-prescriptive guidance could negate the positives of having a flexible approach in the first place.

Further, it would be a real concern is if the CQC were able to be more flexible, but there was not a similar additional flexibility afforded to providers to enable them to challenge ratings or to suspend publication of ratings, whilst challenges are ongoing. It is, for example, unlikely that providers who were “up-rated” by the CQC would want to challenge such a move as they would generally be happy with an improved rating, but where the CQC down-rated a provider, routes of challenge will be very important, given the significant implications this could have.

Determining whether proper routes of challenge can be achieved will need to be looked into once we actually understand the detail of what the CQC intends in its new “flexible” approach to ratings, but Providers will want to pay close attention to further updates.

If the CQC’s new proposals are not going to just create more problems than they solve for providers, there will need to be better mechanisms to challenge ratings awarded under any new, more “flexible” approach. This should include reform of the current ratings challenge process so that it is wider in scope (and does not, for example, contain a 500 word limit), and gives providers proper opportunity to challenge ratings which relate to the underlying findings as well as failures in process. To ensure proper challenges can be brought, the CQC must also be transparent in whatever this new approach will be. It is imperative that any new approach does not simply given them a carte blanche to avoid proper challenge in the pursuit of flexibility.

Unless and until the CQC share further details, we remain wary that we will see a new approach to ratings which is no better – or at least has as many pitfalls for providers – than the current one. We will have to watch this space but we hope that the CQC see that they can – and should – use this opportunity for reform positively and that there is scope to introduce a more accurate and more contemporaneous system of ratings, for the benefit of providers and the public alike.

In the meantime, the CQC are continuing to rate in accordance with their existing criteria and policies (albeit adapted due to Covid-19). Despite the limits of the current system, providers remain encouraged to challenge CQC ratings where there is credible grounds to do so, given their importance from a commercial and regulatory record perspective.

If providers need any assistance with ratings challenges, please contact Ridouts on 0207 317 0340.