Home Health & Hospice Week

CMS offers a helping hand out of the blue.

Just when it looked like CMS had dug in on not allowing aide competencies to be evaluated on pseudo-patients, the agency has backtracked on the onerous requirement that took effect last year.

Then: In January 2018, new Home Health Conditions of Participation took effect. Among the many changes was no longer allowing home health agencies to evaluate aide competencies on pseudo-patients (see Eli’s HCW, Vol. XXVII, No. 16). HHAs held out hope that the Centers for Medicare & Medicaid Services would correct the omission in the COP interpretive guidelines, but the IGs released in August 2018 stuck with the limitation.

Now: Resolution of the problem has come in an unexpected place — a new final rule on “Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction,” among other provisions. The proposed rule didn’t mention the pseudo-patient issue, but the final rule adds it as an interim final rule provision with comment period.

CMS says it is “finalizing a change to permit HHAs to use either patients or pseudo-patients when conducting competency evaluations for home health aides,” according to the rule released Sept. 25. “This additional flexibility will increase the speed for aides completing their competency evaluations, thus increasing the pool of aides eligible to provide services and reducing patient wait times for aide services,” says the rule scheduled for publication in the Sept. 30 Federal Register.

The rule also defines a pseudo-patient as “a person trained to participate in a role-play situation, or a computer-based mannequin device. A pseudo-patient must be capable of responding to and interacting with the home health aide trainee, and must demonstrate the general characteristics of the primary patient population served by the HHA in key areas such as age, frailty, functional status, and cognitive status.”

And the rule further specifies that “we are revising § 484.80(c)(1) to clarify that skill competencies may be assessed by observing an aide performing the skill with either a patient or a pseudo-patient as part of a simulation.” The simulation language should give agencies additional flexibility.

The final rule defines a simulation as “a training and assessment technique that mimics the reality of the homecare environment, including environmental distractions and constraints that evoke or replicate substantial aspects of the real world in a fully interactive fashion, in order to teach and assess proficiency in performing skills, and to promote decision making and critical thinking.”

This development is “great for agencies,” emphasizes J’non Griffin, owner of Home Health Solutions in Carbon Hill, Alabama. “Agencies have struggled with this since the CoPs came out, and several agencies have been cited because they were not able to perform competency on a ‘live’ patient due to safety reasons for the patient,” Griffin notes.

This change was very necessary, as “it is nearly impossible for agencies to hire new aides and have them competencied on actual patients,” relates Sharon Litwin with 5 Star Consultants in Camdenton, Missouri. “Many of our clients have actually stopped hiring new aides and are utilizing nurses for aide services due to the change in CoPs” not allowing pseudo-patients, Litwin says.

CMS refers to this problem in the final rule. A National Association for Home Care & Hospice survey found “45 percent of responding HHAs reported being unable to provide full competency examinations for newly hired home health aides, creating a delay in delivering physician-ordered aide services to HHA patients,” the rule notes. “This delay in direct patient care services may be harmful to patients.”

Actually, the NAHC survey figure was even worse at 54 percent, the trade group’s Mary Carr tells Eli.

This shows why the reversal is a “huge bonus for the industry,” says attorney Robert Markette Jr. with Hall Render in Indianapolis. “This will make it so much easier to hire aides.”

Merely A Technical Revision

The news will take many agencies by surprise. Even though NAHC and others have been lobbying for this change, HHAs are used to CMS tuning out their feedback lately.

“I am pleasantly surprised that CMS has acknowledged … the industry comments that it is extremely difficult to only competency aides to patients, and has caused many agencies to stop hiring new aides,” Litwin says. “This is unfortunate as nurses are often in short supply and they are a large expense,” she adds. “Aides are needed in the home health industry and we are pleased that we can again utilize pseudo-patients.”

“Wow,” Markette says of the about-face. CMS seems to have “taken to heart” agencies’ concerns in this area and realized an access problem was brewing, if not already here.

CMS was able to swing the change without any advanced rulemaking by declaring it a technical correction. “We are revising the language used to describe the process for conducting home health aide competency evaluations to restore longstanding official CMS policy,” the rule says.

The “technical correction to the HHA CoPs as finalized on January 13, 2017” now “explicitly permit[s] the use of pseudo-patients for purposes of home health aide competency evaluations in order to assure that the home health agency regulations and Interpretive Guidelines are consistent with the policy originally set forth in 1991,” CMS explains.

The former restriction caused a “delay in direct patient care services [that] may be harmful to patients, and the technical change will resolve the underlying aide competency evaluation backlog problem that is creating the delay,” the rule continues. “Therefore, we find good cause to waive the notice of proposed rulemaking and to issue these provisions on an interim basis.”

Do this: Don’t be confused by the 60-day comment period on this final rule provision. You should be able to go ahead and resume training aides with pseudo-patients now, experts agree.

One more: CMS also finalized its proposal to “eliminate the requirement at § 484.80(h)(3) to conduct a full competency evaluation, and replace it with a requirement to retrain the aide regarding the identified deficient skill(s), and require the aide to complete a competency evaluation related only to those skills.”

That will be a time-saver, and especially helpful if the aide has already been evaluated favorably on a difficult-to-assess item like bathing, experts noted when it was proposed (see Eli’s HCW, Vol. XXVII, No. 34). But it’s relatively rare that a skill deficiency is noted during the aide supervision process, they pointed out.

Note: The final rule is at https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-20736.pdf.