Home Health & Hospice Week

CMS tries for middle ground with change to observation for aides of nonskilled patients.

A requirement that would have rendered a COVID-19 regulatory flexibility basically unusable has now been ditched.

The Centers for Medicare & Medicaid Services “is finalizing policies that make permanent current blanket waivers related to home health aide supervision,” CMS notes in its fact sheet about the 2022 home health proposed rule.

Recap: CMS had proposed “HHAs be permitted to use interactive telecommunications systems for purposes of aide supervision, on occasion, not to exceed 2 virtual supervisory assessments per HHA in a 60-day period.” In their comment letters, home health agencies and their representatives blasted the two virtual supervisory visits-per-HHA as unworkable to the point of uselessness (see HCW, Vol. XXX, No. 36).

In this case, CMS listened to commenters. “We are finalizing the 14-day aide supervisor visit at § 484.80(h)(1) with modification,” it says in the final rule published in the Nov. 7 Federal Register. “Based on public comment, we intend to apply the changes at patient-level rather than the agency-level. Therefore, we will permit the one virtual supervisory visit per patient per 60-day episode.”

As with the proposal, CMS warns agencies in the final rule that “this visit must only be done in rare instances for circumstances outside the HHA’s control and must have documentation in the medical record detailing such circum­stances.” And the visit must be conducted with “via a 2-way audiovisual telecommunications system,” CMS adds.

CMS also finalizes two other aide-related provisions:

• Non-skilled aide observation. “We had proposed that each aide receive one direct observation every 6 months for one nonskilled patients for which the aide is providing services,” CMS explains in the final rule. “We are revising this requirement so that the aide receives a direct observation every 6 months for each patient to whom the aide is providing services” (emphasis added).

“This is a significant decrease in the planning and coordination for HHAs from the previous requirement of a direct observation supervisory visit for each patient every 60 days,” CMS highlights. “However, it provides an increase in supervisory visits over what was originally proposed,” the agency allows. “We believe this strikes a balance in reducing burden while providing necessary direct observation in ensuring the health and safety of patients receiving home health aide services.”

• Aide competency training and evaluation. “When RNs or qualified professionals identify a deficiency in aide services, § 484.80(h)(3) requires that the agency conduct, and the home health aide complete, retraining and a competency evaluation related to the deficient skill(s),” CMS notes in the final rule. “We proposed to maintain this requirement at § 484.80(h)(3), but to modify it by adding ‘and all related skills,’” CMS notes.

Many proposed rule commenters asked for clarification on what constitutes a related skill, but CMS is hesitant to set down hard and fast rules on that. “This is not a one size fits all in determining what is related,” the agency tells providers. “Every patient and aide presents a unique dynamic. Ultimately it is the supervising nurse’s clinical judgement on a case by case basis to determine what additional competency areas are related.”

However, CMS does offer this example: “If the patient informs the nurse that they almost fell when the aide was transferring them from bed to a chair, the nurse should assess the aide’s technique for transferring a patient in other circum­stances beyond transfer to a chair, such as transferring from a bed to bedside commode or to a shower chair,” CMS offers in the final rule.