Equivalencies for Exit Enclosures

Q: We have a hospital with a number of exit enclosures. These passageways have a large number of unrelated utilities running above the ceiling. Modification will not only be very expensive, but very difficult. Can we use NFPA 101A FSES equivalencies for alternate compliance?

A: Section (10)(h) of the 2012 LSC does say “Existing penetrations protected in accordance with 8.3.5” as an exception regarding utility penetrations into an exit enclosure, so the undesirable utility penetrations in the exit enclosures may be acceptable if you can prove they are ‘existing’ conditions. According to CMS, anything designed or constructed prior to July 5, 2016 is considered existing conditions as far as the 2012 Life Safety Code goes, but not all other authorities agree with this concept entirely. Ever since the 1988 edition and all of the subsequent editions of the LSC, it has said that penetrations of ductwork, conduit, pipes, etc., that do not serve the exit enclosure are prohibited.

Many authorities having jurisdiction enforce this to present day…. Meaning if the utility was installed in 1992 in the exit enclosure but does not serve the exit enclosure, then it still can be cited today because it was not installed correctly ‘back then’. But the 1985 edition does not say that. So, any utility installed in an exit enclosure that does not serve the exit enclosure before the 1988 edition was adopted would be considered ‘existing’ and since it wasn’t prohibited when it was installed, it would be permitted to remain, provided it met the requirements of 8.3.5. For CMS, they were on the 1985 edition until March 11, 2003.

But Joint Commission had been adopting the new editions of the LSC shortly after they were published. So, they were on the 1991 edition back in 1992, which is as far as my memory goes. It’s all a crap-shoot…. Some surveyors will recognize the July 5, 2016 date as the only threshold between new and existing and will allow the existing utilities in the exit enclosure, and then some surveyors will be more scrutinizing and try to determine when the utilities were installed. But to answer your question, if you get cited, you could always go for an equivalency (NFPA 101A FSES) as part of your Plan of Correction, but you would have to prove a significant hardship in complying with the LSC.

One can assume it will be costly to install a 2-hour fire-rated ceiling in the exit enclosure to cover-up the utilities, but the CMS Regional Office is the entity to make the decision to approve the FSES equivalency or not, and you need to convince them whether or not it is a significant hardship. CMS does not accept equivalencies unless the deficiency is first cited, so you will have to wait to get cited by your accreditor or state agency surveying on behalf of CMS. And don’t forget to conduct an assessment for ILSMs now of the deficiency… most authorities will expect you to do so. But equivalencies are only valid until the next triennial survey, so it would be best to make long-range plans to resolve the issue, rather than continuously presenting equivalency requests.

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.

Waiver and Equivalency Validation

Q: During a recent webinar, the presenter said waivers and equivalencies are only valid until the next triennial survey.   Does that really mean if CMS approved a waiver or an equivalency we need to go through that same process again even if things have not changed in 3yrs and get this reapproved?

A: Yes it does. Once a waiver or equivalency request is approved by CMS, it is only valid until the next survey, regardless if the next survey is the triennial survey by your accreditation organization, or a validation survey by your state agency. At that time, the waiver or equivalency is no longer valid, and the surveyor will inspect the area to determine if the deficiency still exists, and if it does, the deficiency will be cited again. Then the hospital has the choice to either resolve the deficiency or submit a waiver (or equivalency) request again.

According to a statement from CMS, this process of having waivers and equivalencies valid until the next survey is a checks-and-balance system to ensure that the conditions in the hospital that allowed the waiver to be approved in the first place have not changed in the time since the waiver (or equivalency) was granted. It makes sense, in that CMS is ensuring that the conditions are still acceptable for a waiver or an equivalency.

However, the expense of submitting waivers or equivalencies every 3 years may be a real burden to some organizations, and there is no guarantee that CMS will approve a waiver (or equivalency) request for the same deficiency a second time. It is a very subjective process. That is why hospitals need to seriously consider resolving the deficiency instead.

Addressing Common Misconceptions Regarding Waivers and Equivalencies

There has been much confusion and differing of opinions regarding the process to submit waiver and equivalency requests, and once they have been approved, how long they are valid. The Centers for Medicare & Medicaid Services (CMS) recently implemented new procedures that resulted in changes on how the accreditation organizations processed waiver and equivalency requests.

Up until a couple of years ago, CMS always said that approved waivers are only valid for 1-year. After the 1-year cycle, the federal agency wanted hospitals to resubmit their waiver request for another 1-year cycle. When Det Norske Vertitas (DNV) came on the scene in 2008 or so, CMS told them straight out-of-the-box that DNV cannot approve waivers or equivalencies. DNV would be required to send them to the appropriate CMS Regional Office for approval. DNV was okay with that because they wanted deeming authority, so they complied. The odd thing though, CMS did not inform Healthcare Facilities Accreditation Program (HFAP) or The Joint Commission of the same policy at that time.

Joint Commission and HFAP always recognized that CMS was the only entity that could approve waivers, but these two accreditors always considered equivalencies as different animals and were not considered to be waivers. It was always understood that the difference between a waiver and an equivalency is a waiver is requesting a specific Life Safety Code requirement to be ‘waived’ and the hospital would not have to comply with it due to significant hardships. An equivalency does not ‘waive’ any Life Safety Code requirements, but instead analyzes surrounding features of fire-safety and assigns numerical values. The numerical values are run through a formula and if the result is a positive number then that confirms there is a equivalent level of safety even with the Life Safety Code deficiency. This concept is supported by section 1.4.3 of the 2012 Life Safety Code. But CMS never saw it the same way and decided an equivalency is similar to a waiver, and needs to be processed the same. Therefore, only they (CMS) could approve equivalencies.

In 2012 CMS notified HFAP that they can no longer approve equivalencies, and CMS wanted HFAP to submit the waiver/equivalency requests to the appropriate CMS Regional Office for approval, just like DNV. But, for reasons known only to them, it wasn’t until July, 2014, that CMS got around to telling Joint Commission the same rules. Joint Commission agreed to discontinue approving equivalencies and would forward them on to the appropriate CMS Regional Office. So, for the first time since 2008, the big three accreditors for hospitals (Joint Commission, DNV and HFAP) were all on the same page and on a level playing ground regarding the approval process for equivalencies. But immediately, there was confusion; not the least of which the CMS Regional Offices were not prepared to handle the influx of the paper requests for waivers and equivalencies. Some of the busier Regional Offices started to misplace the equivalency requests, which meant the hospitals would have to resubmit them. Most of the accreditors required the equivalencies to be submitted on paper rather than electronically because the equivalencies required drawings of the facility, and at that time electronic files of drawings were not easily read without CAD software. That led to large, bulky paper submissions, which were easily misplaced.

By 2015, CMS took action to resolve the serious problem concerning misplaced copies of waiver and equivalency requests, so they contracted with Healthcare Management Solutions (HMS), a vendor, to create an electronic process to accept waiver and equivalency requests and track their progress through the approval process. In May, 2015 HMS unveiled a rather slick and easy process to the accreditors called Sharepoint, whereby the accreditors can submit waiver and equivalency requests electronically from their clients to HMS. Representatives from HMS will review the submissions to ensure that significant information is included, and once they consider it to be an acceptable submission, they will then send it electronically to the appropriate CMS Regional Office for review and approval. At this time (in May, 2015), they submitted a 6-page document to the AOs explaining the process for waivers and equivalencies to be submitted and approved. Highlights of this document says:

  1. Only CMS Regional Offices can approve waivers and equivalencies.
  2. Waiver and equivalency requests will only be considered for existing Life Safety code deficiencies; they will not consider a request if the deficiency has not been cited by the accreditor. (This is contrary to the way that Joint Commission and HFAP operated, as they would approve equivalencies prior to the Life Safety Code deficiency being cited.)
  3. The hospital will submit their waiver or equivalency request directly to their accreditation organization as part of their Plan of Correction to resolve a deficiency cited during a survey.
  4. If the AO agrees with the hospital’s request for a waiver or an equivalency, then they submit the request electronically along with a cover letter recommending approval to the HMS Sharepoint. If the AO does not agree with the request made by the hospital, then they simply do not submit the request to HMS Sharepoint, and the request is effectively denied. This allows the AOs a right of first-denial.
  5. Once the request submission meets the requirements, then HMS sends it on to the appropriate CMS Regional Office. Originally, CMS said they expected the Regional Offices to approve or disapprove requests within 30 days, but that has not always been the case as the influx of waiver and equivalency requests has created a back-log.
  6. The CMS Regional Office decides whether or not to approve the waiver/equivalency request and they make their decision in writing and inform the hospital and the AO of their decision. If they approve the request, it is only valid until the next triennial survey whereby if the deficiency is not resolved at that time, it will be cited again. If they deny the request, the hospital must submit an alternative Plan of Correction to resolve the deficiency.

In addition, when the CMS Regional Office sends a letter of approval to the hospital, they include language that says: “If you are not in compliance with the above requirements at the time of your next survey, you will be required to either submit a plan to correct deficiencies or renew your request for waiver, in order to continue your participation on the Medicare program.” This reinforces the CMS position that waivers and equivalencies are only valid until the next survey.

Since an approved waiver or equivalency is only valid until the next survey, that implies the waiver or equivalency is a short-term, temporary process. This is different than what used to be considered in the past. CMS now allows waiver requests to extend up to 3 years, rather than 1-year; and approved equivalencies are now limited to no more than 3 years, rather than indefinitely or until there is renovation in the area as Joint Commission and HFAP used to allow. Hospitals started to change their strategy and submitted more waiver request rather than equivalencies since equivalencies cost more resources to prepare.

CMS will allow a time-limited waiver request which is essentially the hospital requesting permission to continue to operate the facility with the cited Life Safety Code deficiency for a short-period of time until the hospital can either resolve the deficiency or implement other measures to qualify for an equivalency. CMS has stated that if a hospital cannot resolve a Life Safety deficiency within 60 days of the end of the survey, then they would expect the hospital to submit a time-limited waiver request.

You may wonder why CMS has not issued a public notice explaining the changes with the waiver and equivalency requests. I don’t know for sure, but I suspect it may be that they really don’t see that there have been any significant changes on their part to explain. Other than the HMS Sharepoint process which is really a private conversation between the CMS and the AOs, the statement that the waivers and equivalencies are only valid until the next survey has always been the case with CMS. It really was the Joint Commission and HFAP that had different procedures and allowed equivalencies to be valid indefinitely or until there was renovation in the area. Once CMS got those two AOs to stop approving equivalencies, then everything else fell into place.

Changes With Equivalency Requests for The Joint Commission

imagesO752ZQ8RAs a result of the June 4, 2014 online announcement by The Joint Commission which identified major changes for the Statement of Condition Plan for Improvement (PFI) list, they also mentioned that beginning July 1, 2014 all equivalency requests submitted to them will be passed along to the appropriate CMS Regional Office for their approval.

What The Joint Commission did not say is CMS will not accept any equivalency requests unless it is submitted as part of the organization’s Plan of Correction. This means, hospitals will no longer be able to submit an equivalency request prior to a survey, but will only be able to submit equivalency requests after the Life Safety Code deficiency is cited in a survey report.

What affect will this have on hospital facility managers? I think both changes involving the PFI list and the equivalency requests has the potential for a huge impact on the overall safety of the physical environment, and it won’t be positive.

In just the two days since Joint Commission announced this change, I must have talked with or emailed with over 20 different facility managers and safety officers of Joint Commission accredited hospitals, discussing what options they have with these new changes. This has many of these individuals very concerned since two key tools are changing on how they manage their Life Safety Code deficiencies.

Allow me to summarize these changes:

1). Beginning July 1, 2014, Joint Commission says all items identified on the PFI list will be cited as deficiencies on the survey decision report. No longer will hospitals enjoy a pass from receiving a written deficiency in the survey report for anything identified on the PFI list. [I talked with one facility manager who has over 200 items on his PFI list and their organization is in the survey window for their triennial survey. He needs to clear those PFIs or risk having them identified on the survey report.]

2). Joint Commission says they will review equivalency requests and send them on to the CMS Regional Office for final action. Since CMS does not accept equivalency requests for LSC deficiencies that have not been cited on a survey report, no longer will facility managers be allowed to be proactive and seek an equivalency for a deficiency prior to a survey.

So, I see a very strong potential for facility managers to discontinue being proactive and identify their LSC deficiencies prior to a triennial survey, since there is no relief from the PFI list and there is no opportunity to seek an equivalency. They very likely will take the stand of wait-and-see if the surveyor finds the deficiency and then deal with it afterwards. I fear our industry may fall back into the “hide our skeletons” concept of over 20 years ago. No longer will some facility managers want to be transparent and self-identify their problems. By failing to self-identify their deficiencies, those deficiencies do not get resolved, and if the surveyors fail to identify them, then they likely will not get resolved at all. How safe is that for our patients?

Do not misunderstand me… I do not advocate facility managers to discontinue being proactive and identifying their LSC deficiencies prior to a survey. In fact, I encourage them to continue as though nothing has happened in regards to the PFI list, and still use it as a tool to manage their deficiencies. But, human nature being what it is, I suspect many hospitals will not be as safe as they once were because some facility managers will no longer be proactive and self-identify their LSC deficiencies.

And, you can forget about the cost effective and economical Traditional Equivalencies that Joint Commission used to accept. CMS will not accept those at all, and will only accept the more costly Fire Safety Evaluation System (FSES) as identified in NFPA 101A.

I think this is a very sad day for healthcare. While I was an advocate for fair play amongst all the accreditation organizations, I wanted CMS to approve the advantage that Joint Commission had with the PFI list and approving equivalencies prior to the deficiency being cited, for all accreditors, not just for Joint Commission. Instead, CMS did not clearly understand the potential actions their insistence will cause.

It looks like CMS will not stop until all the accreditation organizations are homogenized into one big quasi-government group whereby you won’t be able to tell them apart. What good is that?

Oversized Suites of Rooms

Q: Can an FSES equivalency be written for an oversized ER suite? Our ER was constructed in 2005 and the designer made it 13,450 square feet, which is more than the maximum allowable amount.  We have exam rooms without doors and a surveyor said that was not allowed if the ER is not a suite.

 A: Yes, a Fire Safety Evaluation System (FSES) equivalency may be conducted and submitted to your authority having jurisdiction, but you have to make sure of a few issues. First, the deficiency for an over-sized ER suite has to address the fact that the exam rooms do not have doors. The surveyor is correct in saying that a room providing care or treatment to a patient has to be separated from the corridor by a door that latches.  Secondly, since you do not qualify for a suite (because you are 3,450 square feet over the limit), you have to assess the ER as if it has an exit access corridor, and all the exam rooms are open to the corridor. The FSES document is a NFPA 101A Guide on Alternative Approaches to Life Safety (2001 edition), and the worksheet to use is form 4.7.6. The value for Safety Parameter #5 has to be -10 points for no doors to the corridor. Make sure you travel distances are no more than 100 feet or 50 feet if through two intervening rooms. If the plans to construct the ER department were approved by the local authority on construction after March 11, 2003, then you must assess the area on the FSES worksheet as new construction, which makes it harder to get the numbers to work. The logic on that issue is a new building should not have any life safety deficiencies. If the numbers do not work out on the FSES equivalency, you can always consider cutting the ER into two, smaller suites by adding doors and walls in strategic areas. That may not be desirable, but it may be your only solution if the FSES does not work.

Sprinklers in Existing Healthcare Occupancies

This may seem basic to some of you, but one of the problems in the healthcare facilities management industry is people don’t always have a good solid foundation of the basics. From time to time, I have a conversation with a client about challenges they are having in regards to installing sprinklers in their existing facilities. Frequently they ask me how they should enter their sprinkler project into the Joint Commission Statement of Conditions (SOC), Plan For Improvement (PFI) list. Eventually I get around to asking the question “Why are you installing sprinklers?” Now, don’t get me wrong, I’m a firm believer in sprinklers as they do save lives in the event of a fire, and I am all for hospitals and nursing homes retroactively installing them, but I want to make sure the client fully understands their options.

First of all, let’s make it very clear that the 2000 edition of the Life Safety Code (LSC) does not require existing healthcare occupancies to be protected with automatic sprinklers, unless the Construction Type or an approved equivalency requires it. Existing conditions is defined as the local authority having approved construction documents for new construction or renovation projects before March 11, 2003. Why March 11, 2003? Because that’s the date the Centers for Medicare & Medicaid Services (CMS) approved the 2000 edition of the LSC. There is a caveat to this issue, and that is the LSC has required new construction and renovation to be protected with automatic sprinklers since the 1991 edition, so if your organization was required to comply with the 1991 (and subsequent) edition(s), then new construction and renovation conducted since the time that edition was adopted by your authorities needs to be sprinklered. CMS went directly from the 1985 edition of the LSC to the 2000 edition on March 11, 2003. I know Joint Commission had adopted the 1994 and the 1997 editions prior to adopting the 2000 edition on March 1, 2003 (Yes, they adopted the 2000 edition 10 days earlier than CMS…), but I do not know if and when they ever adopted the 1991 edition.

Construction Type is a NFPA reference describing the general fire resistance of the construction materials used to build the facility, and the level of fire protection on key structural members of the building, as measured in hours. So, Construction Type II (222) which is the most common type  for hospitals, would be a building constructed with fire resistant materials (such as concrete, brick, stone, gypsum board, etc.) and has key structural members (such as load bearing walls, beams, joists, trusses, floor decks) with a 2-hour fire resistant rating. Generally speaking, the taller the building the greater the Construction Type must be. According to the existing healthcare occupancy chapter (19) in the LSC, some lessor Construction Types in existing constructions must be sprinklered. In some cases an equivalency will specify sprinklers in an existing condition in order to gain enough points to be successful. If you have any approved equivalencies, check them out to see if automatic sprinklers are a condition of their approval.

So, getting back to the client with the question about entering the sprinkler project into the SOC PFI list, I ask them “Why are you installing sprinklers?” If they say it is just a desire of theirs to have a fully sprinklered facility, then that is not a LSC deficiency, and they cannot enter that into their PFI list. The PFI list is reserved only for deficiencies with the Life Safety Code. Now, if they are installing sprinklers because they are renovating an area,or correcting a deficiency with their Construction Type, or need the points on an equivalency, then that is a life safety deficiency and the sprinkler project may be entered into the PFI list.

Confusing? That’s all-right, as it can be. Rome wasn’t built in a day, and everything a facility manager needs to know about the Life Safety Code is not learned by just reading a blog posting…. But it can help!


P.S. Be prepared for changes when the 2012 edition of the Life Safety Code is finally adopted (probably in 2014 or 2015). The new edition will require existing nursing homes to be fully protected with automatic sprinklers, and existing hospitals that are considered high-rise facilities to be fully protected with automatic sprinklers. A high-rise building is greater than 75 feet in height where the building height is measured from the lowest level of fire department vehicle access to the floor of the highest occupiable story. A penthouse mechanical room would not typically be considered an occupiable story.


QUESTION: It has been stated that an organization is permitted to submit either a Traditional Equivalency or a Fire Safety Evaluation System for a deficiency to a life safety feature. How do we decide when to use which one and what is the difference between them?

ANSWER: A Traditional Equivalency is a basic three-step process:

  1. Identify the deficiency and reference the applicable NFPA 101 Life Safety Code paragraph.
  2. Propose an alternative solution to the problem; include drawings      showing existing conditions and the proposed solution; identify the total      cost of the solution, including the source and availability of the funds;      and identify when the solution will be implemented.
  3. One of the following individuals needs to state in writing that the      proposed solution meets the intent of the code, or creates an equivalent      level of safety:
  • A fire protection engineer
  • A registered architect
  • The local AHJ over enforcement of fire safety

A Fire Safety Evaluation System (commonly referred to as FSES) is a multiple page document that places numerical values to specific life safety features of your building. It is found in NFPA 101A, Guide on Alternative Approaches to Life Safety. This document provides alternative approaches to life safety based on the NFPA 101 Life Safety Code. It is intended to be used with the Life Safety Code, not as a substitute. The Life Safety Code permits alternative compliance with the Code under equivalency concepts where such equivalency is approved by the authority having jurisdiction.

After assigning a numerical value to specific life safety features based on questions in the FSES, a sore is derived in four basic equivalency functions:

  • Containment safety
  • Extinguishment safety
  • People movement
  • General safety

If the score equals 0 or greater in each of the basic functions, then the FSES demonstrates an acceptable level of safety, and the AHJ should approve it as an equivalency.

Anyone with intimate knowledge of your facility is permitted to conduct a FSES and special degrees and licenses are not required.