DOH Issues DAL Regarding Waiver and Equivalency Submission Guidelines
On May 11, 2023, the Department of Health (DOH) issued Dear Administrator Letter (DAL) NH 23-04 informing nursing home operators and administrators of changes to the process of submitting a request to DOH for a waiver of federal and/or state fire safety and environmental regulations.
Nursing homes are required to be in compliance with the Centers for Medicare and Medicaid Services’ (CMS) adoption of the 2012 edition of the National Fire Protection Association (NFPA) 101 – Life Safety Code (LSC, the Code) and the 2012 edition of the NFPA 99 – Health Care Facilities Code (HCFC); NFPA Tentative Interim Amendments (TIA); applicable CMS Quality, Safety, and Oversight memoranda; CMS’ Emergency Preparedness Final Rule; and Title 10 of the New York Codes, Rules, and Regulations subparts 713-1 through 713-4, DOH Standards of Construction for Nursing Home Facilities. When a facility is cited for not having met the regulatory requirements, as documented on a Statement of Deficiency (SOD), facilities are required to make every effort to correct the deficiency.
The new process offers a path to achieve compliance through equivalency. If the facility is unable to come into Code compliance for a specific citation/tag, the facility may choose to use an alternative system, method, or device to reach a level of safety equivalent or superior to that achieved by following the Code within the start of any open survey enforcement cycle (allotted timeframe). A facility should request a waiver if they cannot achieve equivalency within 90 days of the start of any open enforcement cycle due to unavoidable extenuating circumstances.
There are several ways to reach equivalency with the provisions of the Code. Some alternative systems or methods include the Fire Safety Evaluation System (FSES), found in the 2013 edition of NFPA 101A – Guide on Alternative Approaches to Life Safety, or performance-based design, found in Chapter 5 of the Code. The use of the FSES is the most common method. If the facility elects to reach equivalency with a cited federal regulation by passing FSES, they must document this on the Plan of Correction (POC), then, after POC approval and at the time of survey revisit, the following documents must be provided for review to the appropriate DOH Regional Office:
- Justification letter (cover letter)
- FSES worksheets
- LSC drawings/floor plans
The DAL outlines the process if a facility is unable to come into compliance within the allotted timeframe due to unavoidable extenuating circumstances. In those cases, the facility may submit a request for a temporary, or time-limited, or continuing waiver.
DOH has scheduled a webinar for nursing homes on Wed., May 31, 2023 at 1 p.m. To register, click here. DOH will distribute reminders as the date draws nearer. The webinar will be recorded and subsequently posted to the Health Commerce System (HCS) along with the slides for reference.
Contact: Elliott Frost, efrost@leadingageny.org, 518-441-8761