Waivers and Equivalencies

Q: When do I complete an FSES equivalency request, before the survey or after the survey? Where do I find the forms need to complete an FSES equivalency? What is the different between an FSES equivalency and a waiver?

A: Keep in mind that waiver and equivalency requests are no longer completed prior to the survey. Since CMS made changes to how they approve waivers and equivalencies, you may only submit a waiver request or an FSES equivalency request to your accreditation organization (AO i.e. Joint Commission) or state agency after that entity has cited you for a specific Life Safety Code deficiency.

The main differences between a standard waiver request and an FSES equivalency request is in a standard waiver request, you are asking permission from CMS to not have to comply with a particular LSC requirement based on a significant hardship (often times financial), and you are not required to provide any evidence that your facility has an equivalent level of safety based on other features of life safety.

However, in an FSES equivalency request, you are asking permission to not have to comply with a particular LSC requirement based on an engineering evaluation that demonstrates your facility has an acceptable level of safety even with the deficiency cited by the surveyor. The engineering assessment is made using a specific form called the Fire Safety Evaluation System (FSES) and is found in NFPA 101A-2013. This is a separate document from the Life Safety Code, but evaluates your level of compliance with the 2012 Life Safety Code.

The person conducting the engineering evaluation of the facility using the FSES worksheets (found in NFPA 101A-2013), has to be knowledgeable and experienced in the process. As you can imagine, this would likely require the typical hospital to use an architect, engineer or consultant who has the requisite experience. This will often drive the cost of an FSES equivalency request to the point where it is far more cost effective to just submit a standard waiver request.

Waivers and equivalency requests are submitted to the entity who cited you for the LSC deficiency. If they agree with your request, they will send it on to the appropriate CMS Regional Office for approval. This approval process can take anywhere from a week or two, to many months. Once approved, the waiver or equivalency request is only valid until the next triennial survey, and at which time it becomes invalid. The surveyor will determine if the LSC deficiency still exists and if so, you will be cited again. So, in the big-picture of things, it is best to make plans to eventually resolve the deficiency because if you don’t, you will be cited again, and there is no guarantee that a waiver or equivalency request will be approved a second time.

Another type of waiver request is the Time-Limited Waiver (TLW) request, and it differs greatly from the standard waiver request. Whereas in a standard waiver request you are seeking permission to not have to comply with a particular LSC requirement, a TLW request confirms that you will resolve the LSC deficiency cited, but you just need more time to do so. CMS has a rule under Title 42: Public Health in the Code of Federal Regulations (CFR) that states the following regarding resolving a deficiency cited by their agents:

Ordinarily a provider or supplier is expected to take the steps needed to achieve compliance within 60 days of being notified of the deficiencies but the survey agency may recommend that additional time be granted by the Secretary in individual situations, if in its judgment, it is not reasonable to expect compliance within 60 days, for example, a facility must obtain the approval of its governing body, or engage in competitive bidding. [§488.28(d)]

When a hospital cannot resolve a LSC deficiency within the 60-day window after a survey then they may submit a TLW request to CMS through their AO or state agency that requests additional time to resolve the deficiency. You would follow the specific instructions to submit a TLW from your AO or state agency.

You would follow the instructions in NFPA 101A-2013 to conduct the engineering evaluation for the FSES equivalency request.