University of Minnesota Long Term Care Resource Center
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Physical Environment - Waivers

 

Description of Federal Requirements
Comparison of State Requirements
Table Comparing States
Complete Transcript of State Requirements on Physical Environment - Waivers (PDF)

Federal Regulations & Related K-tags Applicable Federal Regulation
Building Construction K11, K12, K103
Interior Finish K14, K15, K16
Corridor Walls and Doors K17, k18, K19, K22
Vertical Openings K20,K21, K33
Smoke Compartmentation and Control K23, K24, K25, K26, K27, K28, K104
Hazardous Area K29, K30, K211
Exit and Exit Access K32
Exits and Egress K34, K35, K36, K37, K38, K39, K40, K41, K42, K43, K44
Illumination and Emergency Power K45, K46, K47, K105, K017, K108
Emergency Plan and Fire Drills K48, K50, K51, K52, K155, K53, K109, K54, K55
Automatic Sprinkler Systems K56, K154, K60, K61, K62, K63, K64, K66
Building Service Equipment K67, K68, K69, K70, K71, K160, K161
Furnishings and Decorations K72, K73, K74, K75
Medical Gases K76, K77, K141,K143 Electrical K106,K144, K145, K147,K130
  • 483.70 Physical Environment
  • CMS Form 2786R
  • Description of Federal Requirements    (TOP)    (NEXT)

    The facility must meet the applicable provisions of the 2000 edition of the Life Safety Code of the National Fire Protection Association. After consideration of State survey agency findings, CMS may waive specific provisions of the Life Safety code which, if rigidly applied, would result in unreasonable hardship upon the facility, but only if the waiver does not adversely affect the health and safety of the patients. Also, the provisions of the Life Safety Code do not apply in a State where CMS finds that a fire and safety code imposed by State law adequately protects patients, residents and personnel in long term care facilities.

    Comparison of State Requirements    (TOP)    (NEXT)

    The world of waivers in long term care is as complex as it is simple, discretionary as it is absolute
    and differs between states on a continuum from “we don’t offer state waivers” (Alabama) to “waivers are not necessary  because of regulatory changes based on resident choice” (Wisconsin).  What is certain is there is a differentiation between state and Federal waivers. To understand Federal waivers it is necessary to first understand Life Safety Code K-tags.

    Federal Waiver Process    (TOP)    (NEXT)

    The Life and Safety Code (LSC) is a set of fire protection requirements designed to provide a reasonable degree of safety from fire. The code covers construction, protection, and operational features designed to provide safety from fire, smoke and panic.  The code is a publication of the National Fire Protection Agency and is revised periodically.  The basic requirement for facilities participating in the Medicare and Medicaid programs is compliance with the 2000 edition of the LSC. Providers have other options besides the prescriptive requirements of the LSC as they may choose the Fire Safety Evaluation System (FSES) and a facility may apply for a waiver of a specific provision of the LSC if it is unable to meet a specific requirement. The LSC is not applicable where CMS finds that a state has in effect a fire and safety code imposed by State law that adequately protects patients in health care facilities. In these states the LSC provides that the authority having jurisdiction shall determine the adequacy of protection provided for life safety from fire in accordance with the provisions of the LSC. In cases of unreasonable hardship, a waiver may be granted where it would not adversely affect resident health and safety. The Secretary has delegated to CMS the authority to grant waivers of LSC for all facilities participating Medicare and Medicaid. The State surveyor recommends waivers, but CMS Regional Offices grant the waivers.

    A LSC survey is conducted using the 27 page CMS Form 2786R. This is the Standard Fire Safety Survey Report 2000 Code – Health Care that is used by surveyors during a survey of the Life and Safety Code. This form specifies K tags associated with the following categories: Building Construction (3 k-tags); Interior Finish (3 k-tags); Corridor Walls and Doors (4 k-tags); Vertical Openings (3 k-tags); Smoke Compartmentation and Control (7 k-tags); Hazardous Area (4 k-tags);  Exit and Exit Access (1 k-tag); Exits and Egress (11 k-tags); Illumination and Emergency Power (6 k-tags); Emergency Plan and Fire Drills (2 k-tags);  Fire Alarm Systems (7 k-tags);  Automatic Sprinkler Systems (7 k-tags); Smoking Regulations (1 k-tag); Building Service Equipment (7 k-tags);  Furnishings and Decorations (4 k-tags); Laboratories (7 k-tags); Medical Gases and Anesthetizing Areas (7 k-tags);  and Electrical (6 k-tags). With this complex system and the potential for multiple k-tags, it is easy to understand why facilities feel overwhelmed with understanding the LSC.

    A useful resource for understanding the complexity of CMS Form 2786R Fire Safety Survey Report and associated non-compliant K-tags is a PowerPoint presentation titled: “So That’s What They Look For”- an inside look into Form CMS-2786R presented by Safety Engineers Stephen Pelinski and Bruce Wexelberg and LSC Principal Program Representative Daniel Kristola. At times, CMS will send out, via the web, a memorandum summary which clarifies specific LSC requirements.  Some examples include: a memorandum summary issued on September 5, 2008 on the subject of Compliance with State Fire and Safety Code in Lieu of Life Safety Code, a summary issued on May 26,2006 on Clarification of the amount of air movement allowed between corridors and resident rooms and plenum waiver requirements; a summary issued on March 10, 2006 directed at nursing home upcoming compliance date for the installation of emergency lighting and the replacement of existing roller latches in corridor doors, a summary dated December 17, 2010 which addresses interior finish documentation requirements for multiple providers and an especially useful summary issued on December 21, 2006 which is a response to nursing home culture change regulatory compliance questions and answers.

    Federal Waivers are in response to a facility seeking exemptions to current Life and Safety Code requirements as a reaction to a LSC deficiency K-tag. A waiver may be granted for a specific LSC requirement if (1 it is determined that the waiver would not adversely affect patient and staff health and safety; and 2) it is determined that it would impose an unreasonable hardship on the facility to meet a specific LSC requirement. A waiver can be issued as temporary or renewable annually. Temporary waivers allow a nursing home time to implement an acceptable plan of correction (POC) in response to a K-tag deficiency. Failure to achieve compliance by the end-date will result in the recommendation of an appropriate enforcement remedy which will be imposed as outlined in 7410F3 of State Operating Manual. Annual waivers allow a facility to achieve compliance when it is difficult to correct a requirement. At the time of recertification surveys, current waivers are submitted to the state agency where LSC personnel within the state agency review the waiver request and forward their recommendation to the Regional Office of CMS. Life Safety Code Principal Program Representatives (LSCPPR) reviews the waiver request and makes a decision based on LSC knowledge, survey agent recommendation, precedent and safety engineer consultation. Waiver decisions are sent back to the survey agent. Denials of waiver requests require an acceptable Plan of Correction (POC) to be submitted or additional waiver information be submitted. Approved waivers are good until the next Life Safety Code survey is conducted when they are re-evaluated.

    A useful memorandum dated May 24, 2011, from David Soens, Director of Office of Plan Review and Inspections in Wisconsin, provides information to clarify how Life Safety Code NFPA 101 (LSC) waiver request should be developed by care providers in Wisconsin. The Wisconsin Department of Health Services (DHS) is attempting to address any misunderstandings by proactively notifying all providers that are regulated by the Life Safety Code, of justification needed to move towards approval of a waiver. Approval is not automatic yet is favorable if the following justification is provided. This justification includes: (1) Floor Plan (recommended). Provider indicates the location of the LSC deficiency on a simplified floor plan showing the floor, wing, and room names affected. (2) Cost Estimate (required). Provider analyzes a range of cost alternatives to correct the deficiency, then forwards a reasonable cost estimate from a reputable third party, that is two years or less in age. Costs can include relocation of residents during construction and disruption of services. Provider must ensure that the scope of work is identified within the cost estimate. (3) Financial Hardship (required). Provider explains how strict compliance would pose a financial hardship to the facility's viability: simplified fiscal year 'profit & loss" statement; availability of financing; payback period if deficiency is corrected, or; remaining useful life of the building. (4) Residents health & Safety (required). Provider evidence that the LSC deficiency does not pose a hazard to occupants by detailing compensating safeguards that exceed code-minimum is required.

    The Fire Safety Evaluation System (FSES) differs from a waiver in that the FSES documents whether a building provides an equivalent level of safety to the LSC even if the building does not comply with all the prescriptive requirements of the LSC. A FSES evaluation is completed using CMS form 2786R standard Fire Safety Survey Report 2000 Code.  It is accepted by CMS to document alternative compliance methods to satisfy the LSC. The FSES can be conducted by the survey agent or they can act as the first reviewer of a facility completed FSES. The decision to conduct an FSES is left to the discretion of the survey agent. Life Safety Code Principal Program Representative will evaluate a submitted FSES and will accept a passing FSES or submit a list of errors for the survey agent to pass on to the facility. In New Mexico a facility is considered to have met the requirements if the facility complied with and continues to comply with the applicable provisions of the 1967, 1973 or 1981 edition of the Life Safety Code, with or without waivers. An existing facility that does not meet all requirements of the applicable Life Safety Code may be considered in compliance with it if it achieves a passing score on the Fire Safety Evaluation System (FSES) developed by the U.S. Department of Commerce National Bureau of Standard, established as a safety equivalency under the Life Safety Code.

    Arkansas Innovative Performance Program provides a valuable resource to Arkansas nursing homes by compiling a list of the Top K-Tag deficiencies issued in their state. From December 2007 to February 2009, the top ten K-tags include: K067 Air conditioning and ventilating equipment; K029 Hazardous areas separated by construction; K038 Exit accessible at all times; K018 Construction of doors; K027 Doors in smoke barriers; K069 Commercial cooking equipment meets requirement; K025 Smoke barriers; K050 Fire drills at unexpected times; K056 Auto sprinkler system of standard approved type; and K144 Generators inspected and tested. This list gives nursing homes a heads-up as to what are some current surveyor concerns.

    State Waiver Process    (TOP)    (NEXT)

    In our effort to better understand the state waiver process we contacted each state individually and asked our contact person a standardized set of questions. This task was undertaken during the process of updating our nursing home regulations website. The questionnaire included the following general questions:

    1)name and position of contact person;

    2) information on location of waiver procedures included in the state nursing home regulations or located elsewhere in state rules; 

    3) information on the waiver request process in terms of requests, review, any field work needed, and final decision making process;

    4) information on waiver requests and approvals, where the results are kept, are they readily available to the public and is there a repository of information available on a website;

    5) does this information include denials as well as approvals;

    6) the focus of waiver requests and does anyone tabulate them or look at trends;

    7) are the granted waivers temporary or permanent and

    8) are waiver requests increasing or decreasing in numbers? We have summarized this information in a state table and have collected all state regulations specific to the waiver process. We found some state are very involved with waivers, encouraging nursing homes to apply for waivers, while in other states, the quick answer was they do not allow state waivers. This is confusing in itself because while a state will be quick to state “no waivers considered” each facility in every state has the opportunity for requesting a Federal LSC waiver.

    There is even some flexibility as to being compliant with the LSC as not all states are required to follow the life safety code while other states, in addition to following the LSC, impose additional state code requirements. The LSC is not applicable where CMS finds that a state has in effect a fire and safety code imposed by State law that adequately protects patients in health care facilities. The LSC provides that the authority having jurisdiction shall determine the adequacy of protection provided for life safety from fire in accordance with the provisions of the LSC. While in Minnesota, in order to meet Federal compliance, facilities must be in compliance with NFPA Standard 101, Life Safety Code 2000 edition and in order to meet state licensure requirements, facilities must be compliance with 2007 Minnesota State Fire Code (MSFC).

    When surveying all 50 states on their waivers process it became clear there is regulatory ambiguity in both process and requirements.  Some states use the term variance or exception or program flexibility, while most use the term waiver.  Wisconsin uses both terms with waiver meaning the granting of an exception from a requirement and variance means granting an alternate requirement in place of a requirement. In Alaska, new regulations provide that a general variance will be issued for a period not to exceed one year, while a few sentences later the regulations state “The department may grant a variance for a longer period than one year if it determines: that strict compliance with requirement cannot be accomplished without substantial hardship or the variance will maintain or improve the quality of services for the recipients”. Simply, it is impossible to come to a complete understanding of waivers, the number and types of waivers issued in each state or when a surveyor will use a “judgment call” or simply ignore a regulation as in MS where dining tables for more than 4 residents are not allowed per state regulations yet the 12 person community table was a hallmark of the original Tupelo Green Houses.

    Ten states (Alabama, Arizone, Alaska, Georgia, Kansas, Mississippi, Nevada, New Hampshire, New York, and North Carolina) do not include waiver language in their state nursing home regulations. The remaining 40 states and Washington DC do have regulatory language on waivers but to different degrees. New Jersey waiver rules are included in one paragraph while Texas waiver language involves eight pages of regulations. In California, the information is located in Title 22-72213 and called Program Flexibility for Skilled Nursing Facilities and regulates that while all skilled nursing facilities shall maintain compliance with the licensing requirements, program flexes do not prohibit the use of alternate concepts, methods, procedures, techniques, equipment, personnel qualification or the conducting of pilot projects. In Florida, waiver information is not included in the regulations; rather it can be found in a separate statute. In Oklahoma no formal waiver procedure is in place, rather, per our contact, concerned parties just meet to talk about it. As a result, in Oklahoma, there has not been a single official request for a waiver, ever; as this type of request just happens in conversation.  Pennsylvania has an Exception for Innovative Program which is not intended to restrict the efforts of a facility to develop innovative and improved programs of management, clinical practice, physical renovation or structural design. Under these circumstances the Department encourages the health care facility to request appropriate exceptions.

    The culture change movement has put a new face on waivers with some states helping culture change by creating forms for submitting waiver requests that support culture change (Minnesota), other states are doing away with resident waivers by changing their state regulations in 2007 to read “regulations to be resident specific” resulting in no need for waivers (Wisconsin), other states are not requiring “official waivers” while other states are possibly impeding culture change because of the strict requirement that regulations need to be “officially waived” before changes to the regulations can take place. Because waivers are an active part of the Minnesota nursing home regulatory process, the Engineering Services Section of the Division of Compliance Monitoring routinely provides resources to assist nursing homes who are organizing into neighborhoods or making other changes that support culture is compliant with Minnesota regulations. To take away some of the mystery in designing compliant neighborhood kitchens, a Department’s standard waiver form listing requirements of a neighborhood kitchen is available. This waiver permits the use of residential type food service equipment in a neighborhood kitchen with certain limitations and conditions.

    There are considerable differences between states in the duration of a waiver. The state of Colorado Department of Public Health and Environment may grant a temporary waiver for less than six months while a permanent waiver is most often 1 year in length unless it is a structural waiver in which case it could be waivered for 3-5 years or up to 10 years. For waiver requests in excess of six months, the regional office of CMS must grant the waiver. In Indiana a temporary waiver for a defined time period, may be considered for noncompliance with a specific LSC requirement for which corrective action would take more than 90 days. In Alaska, the department may grant a variance for a longer period than one year if it determines that strict compliance with requirement cannot be accomplished without substantial hardship or the variance will maintain or improve the quality of services for the recipient. In Nebraska waivers that are granted to meet the special needs of a resident remain in effect as long as required by that resident and it ends when conditions of approval no longer exist.

    Many states have very prescriptive procedures for applying for waivers/variances. In Wisconsin, an annual waiver is requested if the facility is unable to correct a deficiency and requests an exception for compliance. The terms continuing, previously-issued, or permanent are also used for the annual waiver. Previously approved waivers must be re-requested each time the deficiency is cited, as if it were a new waiver. It is the facility’s responsibility to provide four documents for each waiver request:

    1) floor plan of the deficiency location;

    2) financial cost of correction;

    3) financial hardship explanation; and

    4) Patient/resident health and safety safeguards to compensate for the deficient practice. Waivers requests in Wisconsin are only for resident care and any waivers for physical plant are handled through K-tags. The most common waiver request prior to 2007, when Wisconsin state regulations were changed, was for removing the resident’s bed from their room because the resident wanted to sleep in their recliners. Rules were changed to allow for “resident’s preference” so a waiver is no longer required when removing a bed from a resident room.

    In response to the question: where is waiver/variance information stored and is there a repository of information on a website for public access we only found 4 states with some type of public access to waiver information.  For the remainder of the states, waiver/variance information is kept in a provider’s file, recorded on facility license, posted in facility but generally not easily accessible to the public. CMS regional offices were contacted for this information but they also do not have a central repository of waivers granted other than individual K-tag deficiencies are recorded on CMS facility report cards. In North Dakota, waiver information is posted on an Excel spreadsheet which includes waivers granted for Board and Care facilities, hospitals and nursing homes. Our request for a copy elicited surprise and wonderment as no one had ever request the information previously. For ND nursing homes, the first waiver recorded was in 1988 for a waiver to the regulation that resident toilet rooms meet handicapped standards. In the 23 years since the first entry 28 waivers have been recorded.  Minnesota is also the only state that has a website devoted to providing nursing home specific waiver information. (http://www.health.state.mn.us/divs/fpc/directory/waiver/waiverselect.cfm)

    Georgiahttp://services.georgia.gov/sos/sos-rw/searchHome.do )  and Iowa (https://eservices.iowa.gov/adminrules/ ) also have websites which list waiver approvals  but they are cumbersome to use without specific facility identity information. The Minnesota site includes: provider ID, provider name, rule being waived, effective date of waiver and comment on waiver request.

    In our interviews of state personnel who worked with waiver requests we asked: what kind of waiver requests do you get and does anyone track them for trends? Not a single state tabulates trends in waiver requests although contacts in some states provided anecdotal information on common requests. In CT most waiver requests are for 3-foot clearance around the bed with request that the bed be pushed against the wall. This request must happen at the request of the resident/family and must involve the roommate as well. In Florida, the agency received three petitions for waivers during the last 5 years. They included:

    1) a waiver of a Certificate of Need rule;

    2) an emergency waiver of additional standards necessary for nursing home to admit children under the age of 16 and

    3) a request to extend a Certificate of Need.

    In Hawaii, waiver requests range from waiving the requirement for having a RN on duty 24/7 to approval of sharing a common bathroom between residents of different genders to waivers on corridor width and room size. In Idaho common requests include resident request to bring a bed from home or to sleep in a recliner.

    In Kentucky, variance approvals in 2010 related to the following: wireless nurse call system; bedside clearance in resident rooms; minimum dimensions of resident toilet rooms; allowing the lavatory in the shared toilet room instead of the resident’s room and use of shared toilet rooms.

    In Maine, waiver requests are generally approved and often include waiving the requirement of a 3 foot clearance space around the toilet. Maine will not grant a waiver on lowering staff ratio.

    In Maryland, waiver requests are increasing related to culture change concepts. This need will be addressed in next regulation update so that waivers are not necessary for culture change. In the case of Maryland Green House projects, waivers were approved during plan review. 

    In Missouri, waivers are called exceptions and include: number of tubs and showers per resident, separate bathrooms for each sex on nursing unit, administrators requesting to serve at more than one facility, wireless call systems and the exception of a nursing station.

    Since 1988, North Dakota waiver requests include: lack of acoustical ceilings, less than a 4 square foot shower; single rooms with dimensions less than 10 feet; resident toilet rooms not handicapped accessible; dining rooms less than 20 sq feet per bed; bathing facilities not provided for every 20 beds; lack of staff toilet at nursing station; heating, ventilating and air condition requirements; no barber/beauty shop; no toilet room convenient to activity space; lavatories do not have gooseneck spouts and blade handles and lack of emergency electrical outlets in corridors.

    In Oregon, some exceptions are written into the regulations. These include: the required number of whirlpool tubs may be waived on a case-by-case basis, the design criteria for showers may be waived for facilities that have been continuously licensed since January 1, 1992 and spouts and faucet handles shall be exempt.

    In Tennessee, granted waivers include program issues such as a nursing home operating without a licensed administrator and allowing the DON and administrator to serve two facilities. Life safety building issues include: waiver of AIA guidelines regarding dining rooms, separate designated space, reception and information desk location, public waiting areas, vehicular drop off and waiver of the Standard Building Code for open kitchen in Green Houses In Tennessee waiver requests are increasing due to designing homes according to Green House and Eden principles.

    In Texas, common waivers include: nursing requirements and square footage of resident rooms. In Washington, most waiver requests are for wireless call systems and resident room size. In Wyoming, during the last four years only 2-3 waiver requests were made and one was for a swamp cooler (operated with water and puts moisture in the air) instead of a required air conditioner. For the other two requests, after review it was decided that no request was needed and that the facility could accomplish what they requested without a waiver.

    Minnesota encourages waivers to the point of providing waivers forms to providers to help standardize the process. In Minnesota in 2009, 71 waivers were approved and in 2010 115 waivers were approved. Similar waivers were approved for different facilities and most were in support of a non-traditional environment. A summary of waiver approvals for the 2 year period 2009-2010 include:

    • - Substitute a refrigerator with integral ice and water dispensers for refrigerated drinking fountain near the dining area. Refrigerator will be located in kitchenette.

    • - Substitute fold-down grab bars mounted on either side of the toilet in lieu of L-shaped grab bar mounted on side wall. Waiver applicable to 28 resident toilet rooms.

    • - Provide freestanding portable toilet paper holder in each toilet room in lieu of mounted paper holder on sidewall. Waiver applicable to 28 resident toilet rooms.

    • - Mount the toilet 24 inches from sidewall in 19 new and 9 remodeled resident toilet rooms.

    • - Mount toilet 34 ¼ inches from sidewall in 22 new resident toilet rooms.

    • - Mount the toilet 27 inches from the sidewall in two new central bathing rooms.

    • - Mount toilet 64 inches from sidewall in two bariatric toilet rooms.

    • - Eliminate horizontal grab bar at rear of toilet applicable to 28 resident toilet rooms.

    • - Install residential type food and service equipment in 4 neighborhoods serving 12, 19, 20 & 25 residents.

    • - Allow soiled dishes to pass through the food preparation area on way to under counter dishwasher.

    • - Install a commercial grade NSFI listed under-counter dishwasher in 4 neighborhood kitchens.

    • The food preparation area is not separated from the dishwashing area by a full-height wall.
    • Install a residential type freezer, refrigerator, range and range hood in 6 bed licensed nursing home. Waiver to be reevaluated at time of replacement of each piece of equipment.

    • - Approved sharing of a toilet room by persons of the opposite sex. Neither resident is capable of using toilet without assistance.

    • - Install arial wireless communication system throughout the facility. System is not capable of activating the dome light outside the resident bedrooms.

    • - Install residential type food service equipment in 7 neighborhoods.

    • - Eliminate 32” high splash wall in central bathing room. “The bathing Technicians” will wear protective clothing and footwear while showering the residents in both shower chairs and gurneys.

    • - Approved a request to conduct charting of medical records within a room that also functions as a clean utility and medical preparation room.

    • - Approved request to eliminate cabinets in remodeled soiled utility rooms.

    • - Install in-swinging doors to central bathing rooms. The rooms are large enough to accommodate in-swinging doors.

    • - Install microwaves with integral re-circulating hoods above the electric ranges in 3 locations. These hoods employ activated charcoal filters.

    • - Approved 49” corridor width for 8’6”. This corridor serves four bedrooms, a handicapped accessible toilet and shower room and a handicapped accessible toilet and tub room.

    • - Approved three bathing fixtures for 65 beds.

    • - Provide approximately 156.25 sq. feet of useable floor area in rooms 309 & 312. Reduction in usable floor area is result of heating system upgrade.

    • - Approved to substitute a Culligan model CC custom water cooler/dispenser for refrigerated drinking fountain in main lobby area.

    • - Combine a central bathing tub room and a beauty and barber shop in one room. This is a time-limited waiver.

    • - Use of room M-1 as a 2-bed room. This room provides 190 SF of useable floor area.

    • - Substitute a Crystal Mountain Modul Model refrigerated water dispenser for the refrigerated drinking fountain in or hear the dining room in the memory care unit.

    The future of waivers in the regulatory process will basically stay the same for Federal waivers –although interpretation of K-tags may change as there has been considerable work put into changing some Life Safety Codes to be more supportive of culture change. As states are updating nursing home regulations there seems to be a pattern of a more limited emphasis on the need for waivers in the future. In, Wisconsin, where regulations where updated in 2007, the rewriting of the regulations emphasized “resident’s preference” which supersedes the need to adhere to a specific regulation.  Alaska's nursing home regulations, in combination with assisted living regulations, were updated in 2010 with an eye to reducing the nursing home population. The regulations now contain a provision that a variance may be granted if it: promotes aging in place to minimize the need for a resident to move from the home, or integrate mentally, developmentally, and physically disabled residents into the community to reach their highest level of functioning.

    A frustration of this waiver project was the inability to access public information on waivers granted in most states as they are filed in the facility folder and not accessible to outsiders. But we will continue our search for specific waiver information as part of a project, Variations in Small-House Nursing funded by Retirement Research Foundation. For this study, we have identified over 50 small house/household projects around the country who we will interview on a variety of topics including the question: what waivers were required to build this facility? Once this information is compiled, this report will be amended to include that very up-to-date information.

    Table Comparing States    (TOP)

    Note: If the States in this table are not hyper-linked, their provisions do not appear to address the topic, and therefore, do not alter the Federal Regulatory scope.  The Table summarizes content on Physical Environment - Waivers by State (with a link to each State's specific language).  Link to a downloadable PDF document containing all State requirements on Physical Environment - Waivers at the bottom of the Table.

    483.70 Physical Environment

    Waivers
    State Goes beyond Federal Regulations? Subjects Addressed: How State Differs From or Expands On Federal Regulations
    Alabama No No state process for waivers in regulations. Only Federal waivers for K Tags.
    Alaska Yes

    Request sent to: Health Facilities Licensing & Certification Program Manager
    Variance file location: Provider file
    Currently, there are no General Waivers that have been granted or are in effect for nursing homes.

    Extensive section on Variance authorization 7AAC10.9500-7 AAC10.9535 (Also includes variances for assisted living which has a provision that variance may be granted if it: “promotes aging in place to minimize the need for a resident to move from the home; or integrate mentally, developmentally, and physically disabled residents into the community to reach their highest level of functioning”.) 7AAC10.9505 General Variance may be granted if: applicable requirements are met; an alternative means satisfies the purpose of the requirement for which variance is sought and the health, safety, and welfare of recipients are protected. 7AAC10.9510 Request must contain: requirement from which variance is sought; reasons why unable to comply with requirements; period of time for variance; proposed alternative; how the health, safety & welfare will be protected; plan for achieving compliance before variance expires; assurance conditions do not present imminent danger; if request for fire safety evidence request has been reviewed by appropriate authority; and names of recipients of services who would be affected by variance. 7AAC19.9520 Evaluation of a request for a general variance by: investigating the statements in the request form; inspecting the entity if appropriate conferring with applicant regarding request and/or discussing request with affected recipients. 7AAC10.9525 Grant or denial of a general variance will be: issued in writing and delivered to person who made the request & for a period that does not exceed one year, if the department determines the entity is (1) unable to comply with the requirements from which the variance is sought; (2) has an effective plan for achieving compliance during the term of the variance and (3) is able to provide for health, safety and welfare of recipients of services during term of variance. The department may grant a variance for a longer period than one year if it determines: that strict compliance with requirement cannot be accomplished without substantial hardship or the variance will maintain or improve the quality of services for the recipients and that the entity has an effective plan for meeting the goal of the requirement. 7AAC10.9530 Posting of a general variance in a conspicuous place. 7AAC 10.9535. If the department denies or revokes a variance, the entity may submit a written request for the department for reconsideration. After reviewing request, the department will notify the entity in writing within 30 days after receiving request and will state reasons for department’s final decision.
    Arizona Yes No state process for waivers in regulations. They only do physical plant waivers and have not had a request in over 6 years. Requests come to architectural program that would make recommendations and forward recommendations to Division of Licensing Services. Waivers would be granted for 3 years at which time a surveyor would check for compliance. Federal regulations are used for reference when reviewing waiver requests.
    Arkansas Yes

    No state process for waivers in regulations. Arkansas does not grant any waivers or variances at state level and only go by the federal regulations and grant a waiver based on a federal waiver.

    Example: Older nursing homes where granted a waiver when the federal air quality requirement in nursing homes was changed. It would have been too costly for older nursing homes to meet the federal requirements.
    California Yes

    No state process for waivers in regulations. Information on alternatives to the regulations is located in Title 22-72213 Program Flexibility for Skilled Nursing Facilities of the California Regulatory Code. (a) All skilled nursing facilities shall maintain compliance with the licensing requirements. These requirements do not prohibit the use of alternate concepts, methods, procedures, techniques, equipment, personnel qualifications or the conducting of pilot projects, provided such exceptions are carried out with the provisions for safe and adequate care and with the prior written approval of the department. To be granted Program Flexibility, the nursing home needs to prove they meet the intent of the original code through other means. Requests are submitted to one of 17 district offices. The waiver decision is made by the surveyor who represents the facility that is asking for the program flexibility and the district office manager. It is the district office manager who signs off on the program flexibility that will enable the facility change their mode of operation away from the original California Code. The Office of Statewide health Planning and Development (OSHPOD) is involved in physical plant waivers. Program flexes are not permanent and may be revoked at any time if a facility is found to be out of compliance with the approved plan. Flexes are typically not required to be renewed at regular intervals.

    Files are kept in provider’s file in district offices.
    Colorado Yes

    The Colorado Department of Public Health and Environment is involved with the waiver process. 4.106 Waiver of Building and Fire Safety Regulations for Skilled and Intermediate Health Facilities
    The Department shall review the application and make a recommendation to the Board within ninety calendar days of receipt of the complete application as to whether or not the requested waiver should be granted. (a) The Department may recommend granting a waiver only upon finding that:
    (i) Rigid application of the Regulation would result in demonstrated financial hardship to the health care entity, and

    (ii) Granting the requested waiver would not adversely affect the health and safety of the health care entity’s residents or patients. The Department is responsible for monitoring any waiver approved by the Board. The waiver decision is ultimately made by the director who will sign off on the request. The request goes through a committee of individuals who will consider the facility record up to this point. If there is not a current survey of the facility, the application may be stalled because the committee needs the most current evaluation of the facility before it can make its decision. The committee/ Program Manger at Licensing and Certification or the Life Safety Code manager complies all of the information of the facility and passes their recommendation on to the director. The length of time required for a waiver decision is 90 days. This time may be extended if the application is not complete or the survey has not been done.  Most waivers are 1 year in length unless it is a structural waiver in which case it could be a waivered for 3-5 years or up to 10 years. If a facility remodels they must re-do their waiver application. If a facility changes hands then the new owner must re-submit the waiver. Waivers in Colorado go with the owner not the facility.
    Connecticut Yes

    Waivers are noted on license.
    Most waiver requests are for 3-foot clearance around the bed with the request that the beds be pushed against the wall. Had moratorium on NH construction since 1990. 3-foot clearance waiver must happen at the request of the resident/family and has to involve the roommate. Waivers generally apply to a person so are not permanent.
    Process includes: The commissioner or his/her designee may waive provisions of these regulations if it is determined that such waiver would not endanger the life, safety or health of any patient. Conditions which assure the health, safety and welfare of patients are imposed and the power to revoke such waiver upon a finding that the health, safety, or welfare of any patient has been jeopardized.
    Applications to include:
    The specific regulations for which the waiver is requested;
    Reasons for requesting a waiver, including a statement of the type and degree of hardship if not granted.
    Decisions are based on: The level of care provided; The maximum patient capacity; The impact of a waiver on care provided and alternative policies or procedures proposed.

    -The request goes to a committee that grants or don't grant the waiver composed of: Building and Safety Code Representatives, Supervisors, and a Nursing Association Representative. The committee's decision is than reviewed by the head of the Facility Licensing and Inspection Section, who either accepts the waiver application or denies the waiver application, putting in writing to the committee why she did not approve the waiver.
    Delaware Yes Nothing about the process for waivers in regulations but following text is included in regulations: Waivers may be granted by the Division of Long Term Care Residents Protection for good cause. An interview with the Quality Improvement Administrator provided the process which includes: requests must be in writing and are sent to head of the Division’s Licensing and Certification Section – who in consultation with others makes the final decision. Waiver decisions are kept in the main licensing folder for each facility.
    District of Columbia Yes

    Waiver information would be posted on the Department’s website. No waivers have been requested to date. 

    The Director may grant a variance from any of the requirements if the applicant can show undue hardship and the variance can satisfy the following conditions: is not inconsistent with other provisions of the Act; is not deleterious to the public health and safety; and It would not have the effect of permitting a violation of other laws or regulations of the District of Columbia.
    Request shall be submitted in writing to the Director and include the following:  The regulatory requirement(s) for which a variance from strict compliance is being requested; specific justification as to why the facility cannot meet the requirement(s); and alternative measures provided to ensure quality care and services .The Director shall grant a variance only to the extent necessary to ameliorate an undue hardship and only when compensating factors are present to give adequate protection to the public health without impairing the intent and purpose of the Act or the rules of this chapter. If the Director believes that the conditions are not met, a written proposed denial together with advice to the applicant as to his or her right to a hearing.
    Florida Yes

    Requests submitted to the General Counsel’s Office. Waivers are not included in the regulations but there is a separate statute on waivers.

    The agency received three petitions for variances/waivers during the last 5 years. They include 1. A waiver of a CON rule that prevents a CON from being extended beyond 18 months when no construction on the project has been commenced. This waiver was denied. 2. An emergency waiver of additional standards necessary for nursing homes to admit children under the age of sixteen. This waiver was granted. 3. A request to extend a CON. This waiver was denied.
    Georgia Yes

    State has a Rules Waiver Register on the web where waiver petitions can be searched by: chapter number; rule number, petitioner’s last name; company name or agency and agency decision. http://services.georgia.gov/sos/sos-rw/searchHome.do
    Waiver procedure not in regulations but in the law applicable to nursing homes. Process includes: facility makes an application for a waiver of a particular rule, sets forth reasons for request, alternative standards it is offering to meet in order to comply with the intent of the rule. Application is reviewed by program management staff. Time required: 60 days for state to accept or deny a waiver application. Once application has been received by the Office of Regulatory Services, it is placed on a website for public review and comment. If there are no public objections to the waiver application, it is reviewed by the office of Regulatory Services for approval or denial of waiver application.
    Waivers have a yearly renewal.
    In exceptional cases and upon application to the Department by the governing body of the home, variances may be granted at the discretion of the Department (if it determines that these requirements will place an undue burden or extreme hardship on the home or its occupants), provided that the health and safety of the patients is not jeopardized.

    Hawaii Yes

    Providers submit a written request for a waiver(s) which is reviewed and approved/denied by the Medicare Certification Officer or OHCA Branch Chief based upon recommendations from the survey staff that complete surveys of the facility. The results are retained in the State Agency’s providers’ work files. The waivers are reflected on the providers’ license and are not available on any website.

    Waiver requests vary from having a Registered Nurse on duty 24 hours seven days a week to having a common bathroom shared by residents of different genders, to corridor width/room size waivers due to existing structures. Waivers granted at the discretion of the director and no waiver shall be for duration longer than one year.
    Idaho Yes Waivers are submitted to the LTC office that has authority for final decision. Waiver application and decision are kept in facility file in LTC office. Department receives very few waiver requests but examples would include: if someone wants to bring a bed from home or sleep in a recliner, they will have to ask for a waiver. Also, medication: not mixing medication distribution systems, bottles from home with new medication. Beds and medications are most frequent requests for waivers and all are approved with regard to bed and meds but requests for fewer bathing facilities are not all approved. Waivers allowed until the next survey period when they are reexamined.
    Illinois Yes

    Waiver section includes Section 300.288 Reduction or Waiver of Penalties.
    Section 300.320 Waivers
    Waivers granted or renewed for a period not to exceed the duration of the current license or the renewal period. The waiver may be conditioned action prescribed as a measure equivalent to compliance. Determination for granting or renewing a waiver based on: duration and basis for any current waiver with respect to the same rule or standard; continued validity of extending the waiver on the same basis; effect upon the health and safety of residents; quality of resident; facility's history of compliance with the Act and this Part and facility's attempts to comply with the particular rule or standard in question. The Department shall renew waivers relating to physical plant standards issued at the time of the indicated reviews, unless it can show why waivers should not be extended for the following reasons: condition of the physical plant has deteriorated or its use substantially
    changed so that the basis upon which the waiver was issued is materially different; or facility is renovated or substantially remodeled in such a way as to permit compliance with the applicable rules and standards without substantial increase in cost.
    Section 300.3060 Nursing Unit
    b) Resident Bedroom. Single resident bedrooms shall contain at least 100 square feet of usable floor area. Multiple resident bedrooms shall contain at least 80 square feet per bed

    of usable floor area. Minimum usable floor area shall be exclusive of toilet rooms, closets, lockers, wardrobes, alcoves, vestibules, or clearly definable entryways. Those bedrooms for which facilities had waivers to this since December 24, 1987, and which have at least 90 square feet for single bedrooms and 70 square feet per bed for multi-bedrooms are exempt from this subsection. Those bedrooms for which facilities had waivers to this subsection since December 24, 1987, but which have less than 90 square feet for single bedrooms and 70 square feet per bed multi-bedrooms, continue to be subject to waiver procedures on an annual basis.
    Indiana Yes Waiver requests are submitted to the Indiana State Department of Health (ISDH) which reviews and makes a determination on the request. Very few waivers are requested and those issued are not available on the web, rather they are stored in a facility file.
    Iowa Yes

    Procedures for a Variance/Waiver Request located here. A waiver/variance from the rules may be granted by the Director of Department of Inspections and Appeals for good and sufficient reason when the need for waiver/variance has been established; no danger to the health, safety, or welfare of any residents results; waiver/variance will apply only to an individual health care facility. Waiver/variance requests will be reviewed at the discretion of the Direct and will be either granted or denied within 120 days of receipt. Of a temporary waiver is granted there is no automatic right to renewal.
    Variances/Waivers are located on the web at: https://eservices.iowa.gov/adminrules/
    Certain resident populations, conditions in the area, or the site may justify variances. In specific cases, variances to the rules may be granted by the director after the following conditions are met:

    1. The design and planning for the specific property shall offer improved or compensating features which provide equivalent desirability and utility;

    2. Alternate or special construction methods, techniques, and mechanical equipment shall offer equivalent durability, utility, safety, structural strength and rigidity, sanitation, odor control, protection from corrosion, decay and insect attack, and quality of workmanship;

    3. The health, safety or welfare of any resident  shall not be endangered;

    4. Variations are limited to the specific project under consideration and shall not be construed as
    establishing a precedent for similar acceptance in other cases;

    5. Occupancy and function of the building shall be considered; and6. Type of licensing shall be considered.

    The food service area shall be at least 10 square feet per resident bed. Variances to this rule may be granted on the basis of equipment and serving methods used.
    Kansas No No state process for waivers in regulations
    Kentucky Yes

    Extensive waiver information located in 902KAR20:008 License procedures and fee schedule. In Kentucky, variances do not apply to program/resident care only facility specification requirements are waived. Waivers are not available on a website rather they are contained in facility’s file. Variance approvals in 2010 relate to the following: wireless nurse call system; bedside clearance in resident rooms; multiple requests regarding resident toilet rooms, including allowing the lavatory in the shared toilet room instead of the resident’s room, minimum dimensions of resident toilet rooms and use of shared central toilet rooms.
    Procedures include: a facility makes a written request for a variance which includes all pertinent information about the facility, indentifies the specific provision of the state’s regulation the facility would like to exempt, identify the specific reason for the request and provide evidence in support of the request. The variance request must either improve the health, safety, or welfare of the residents or promote the same degree of health, safety, or welfare of residents as would prevail without the variance. Upon receipt of a variance request the Office of Inspector General (OIG) staff review the request, may ask for additional information, and makes a final decision. Applicants may appeal any decision to deny or revoke a variance request by requesting an administrative hearing which is conducted by an independent hearing officer.

    Variances are approved if the facility has established that the health, safety or welfare of a resident is improved or if the variance would promote the same degree of health, safety or welfare of a resident. Variances may be revoked should the state agency determine that the variance has negatively impacted a resident. Most variance are approved because the majority of variance requests relate to issues for which the OIG has already granted the same variance to another facility. Some variances are temporary until the facility is able to meet the facility specification requirements established in state regulations. Some variances may be permanent; however, a permanent variance may be revoked if it does not promote the same degree of health, safety, or resident welfare as would prevail without the variance.
    Louisiana Yes Very limited reference to waivers in regulations. Under 9703 Licensing Process M: Exceptions to these Licensing Requirements.  1) If requirement on an existing nursing home would impose a financial hardship but would not adversely affect the health and safety of a resident, the home may submit a request for exception (waiver) to the department and 2) where a more stringent requirement on an existing nursing home would impose an unreasonable hardship, the existing nursing home may submit a written request for exception.
    Maine Yes

    Waiver requests are submitted to the Manager of Licensing and Certification and are kept in the central office in Augusta, Maine in each facility’s file. Waivers are generally approved and include waiving the requirement of a 3-foot space around the toilet. Maine will Not grant a waiver on lowering staff ratio.
    Where structural changes in an existing facility are necessary for such facility to comply with the provisions of these regulations and the change would result in an unreasonable hardship to the owners or operators, the Department may grant a waiver of one or more of the specific provisions of these regulations to an operator or owner.
    Any new construction or bed conversions for Alzheimer’s/Dementia Care Units approved after the

    effective date of these regulations are not eligible for waivers.
    Maryland Yes Waivers result from citation. Federal Programs, Office of Health Care Quality handles waivers. Procedures include: a facility is cited for not meeting requirement and request waiver of cited deficiency. Granting a waiver of regulation is based on facility’s ability to demonstrate that residents’ health/safety is not adversely affected by granting of waiver of requirement. On-site review occurs if necessary. In case of Green House projects, waivers were approved during plan review. Waivers are not on website, rather they are stated in a letter that accompanies their license. Waivers are reviewed each year. Most common waivers include: bed room size and wireless call systems. Waiver requests are increasing related to culture change concepts. This will be addressed in next regulation changes so that waivers are not necessary. If a facility experiences practical difficulties or unnecessary hardships in complying with the provisions of this chapter, and can demonstrate that granting a waiver will not adversely affect the health and safety of its residents, the Secretary may waive any provision of this chapter. A waiver granted to a facility is effective for the period specified in the waiver.  A waiver may be revoked at any time if a facility violates a condition of the waiver or if it appears to the Secretary that the health or safety of residents residing in the facility would be adversely affected by the continuation of the waiver.
    Massachusetts Yes

    Requests are submitted to the Bureau of health Care Safety and Quality in a two-step process. !) We review and make a recommendation to approve or 2) the recommendation is forwarded to a clinical person. If we cannot recommend a waiver request for approval, we ask the provider to withdraw their request.  Waivers are not currently on line but this is being discussed. There is a move to standardize some waivers so providers do not have to always apply for waivers. There is no database currently other than waiver documentation is kept in a facility file. Some usual waiver request include: room size, between bed configuration, distance of a nursing station from resident rooms, extending meal time or wanting meal to be earlier. For a physical plant waiver they are reviewed by a staff architect. Procedures are in the process of being change.

    Waivers will be granted if: the facility's non-compliance does not affect the health or safety of its residents and does not limit the facility's capacity to give adequate care; the facility has instituted compensating features or has undertaken a special project under 105 CMR 153.030(A) acceptable to the Department; and the facility provides to the Commissioner or his designee written documentation supporting its request for a waiver.
    Michigan Yes

    Requests are submitted to the Bureau of Health Systems in 2 ways: directly to the bureau or 2) as a response to annual surveys when a facility has been cited and needs to put in place a plan of correction. They do no resident care waivers, only physical plant waivers. Department expectation is that if there is a related state law, then this is how it is done unless there is waiver language available, which in Michigan law is only with regard to physical plant. Waivers are not kept on a website. Hard copy files are kept for each facility. Common waiver applications are for room size.

    (3) A major alteration is deemed to be any extensive structural alteration of an existing building area involving significant changes in the interior configurations or intended use by the moving of partitions of a number of rooms and involving an expenditure in an amount in excess of $25,000.00. Removal of a partition between 2 adjacent rooms to provide additional room space is not deemed to be a major alteration, unless it exceeds $25,000.00 in cost or unless multiple changes are to be made for a changed use of an entire wing or area and extensive plumbing or electrical wiring changes are required.

    (4) The department may waive the applicability of this rule if it determines the waiver will not affect the public health, safety, and welfare.

    Minnesota Yes

    Website for waiver is here

    Minnesota has a comprehensive registry for all nursing home waivers granted. The site does not contain waiver denials. Process includes submitting a request in writing to the department that includes: specific part or parts for which the waiver is requested; the reasons for the request; alternative measure that will be taken if waiver is granted, length of time waiver is requested and other relevant information. A request for renewal of waiver must be submitted in writing at least 45 days before its expiration date. An applicant may contest the denial, revocation, or refusal to renew a waiver by requesting a contested case hearing under Minnesota Statutes, Chapter 14. Common waivers include: wireless call systems, fold down grab bars, commercial grade dish washer and culture change waivers.
    Mississippi No

    Nothing about process for waivers in state regulations

    Missouri Yes

    Waivers are called “exceptions” to state regulations. The procedure includes: requests in writing to include: copy of latest Statement of Deficiencies which shows a violation of the rule being cited;  specific reasons why compliance would impose undue hardship including estimate of cost, explanation of extenuating factors and description of factors what would safeguard the health, safety and welfare of the residents if exception were granted. Exceptions reviewed by committee that consists of Facility surveyors, facility advisory nurse engineering consultant and program mangers. The department can only grant exceptions to licensure requirements set out in rules imposed by the department and cannot grant exceptions to requirements established by state statute or federal regulations. No website repository of information. Records are used for off-site preparation for surveys.
    Common exceptions requested include: number of tubs and showers, separate bathrooms for each sex on each nursing unit, administrators wishing to serve at more than one facility, nurse’s stations and wireless call systems.

    No provision of the 1997 code will be enforced if it is more restrictive than the code of original plan approval. Facilities may only use the fire safety evaluation system found in the 1995 NFPA 101A, incorporated by reference in this rule, if necessary to justify variance from the text of the Life Safety Code and not as a guide for the total design of a new facility.
    Montana Yes

    Although regulations contain language: Variance means a written document issued by the regulatory authority that authorizes a modification or waiver of one or more requirements of this subchapter, if, in the option of the regulatory authority, a health hazard or nuisance will not results from the modification or waiver. Waivers are only given a federal level. Language for Minimum standards for health care facilities on food says that local health authority may grant a variance by modifying or waiving the food requirements if in the opinion of the local health authority a health hazard will not result.

    Nebraska Yes

    Waivers relate to physical plant and no waivers are allowed that relate to the provision of care and services. The waivers are reviewed with each compliance survey. There is no official tracking systems for waivers, rather they become part of the facility’s public document file. They recently reviewed all waivers and were able to remove a number of them as the facilities no longer needed them.

    Waivers to physical plant may be granted if: The waiver would not unduly jeopardize the health, safety, or welfare of the persons residing in the facility; The provision would create an unreasonable hardship for the facility; and The waiver would not cause the State of Nebraska to fail to comply with any applicable requirements of Medicare or Medicaid so as to make the state ineligible for the receipt of all funds to which it might otherwise be entitled. Duration of waivers include: Waivers that are granted to meet the special needs of a resident remain in effect as long as required by residents; ends when conditions of approval not longer exits and
    in effect as long as required by the resident; waivers may be granted to permit a facility time to come into compliance with the physical plant standards for a period of one year. Upon submission of proof of ongoing progress, the waiver may be continued for an additional year;

    Nevada No No regulations within state rules for waiver/variance. Only Federal waivers
    New Hampshire No No regulations within state rules for waiver/variance. Only Federal waivers
    New Jersey Yes

    Application for waiver process is as follows:
    1. The nature of the waiver requested;
    2. The specific standards for which a waiver is requested;
    3. Reasons for requesting a waiver, including a statement of the type and degree of hardship that
    would result to the facility or any individual upon full compliance;
    4. An alternative proposal which would ensure resident safety; and
    5. Documentation to support the application for waiver.
    (d) The Department reserves the right to request additional information before processing an
    application for waiver.

    New Mexico Yes

    A variance committee in the Health facilities Licensing and Certification department review requests. Information is not on website but stored in a file for each facility. Waivers generally include: staffing, size of corridors 7.9 instead of 8 feet, and room size.
    (1) Waiver: means the grant of an exemption from a requirement of these regulations.
    (2) Variance: means the granting of an alternate requirement in place of a requirement of these regulations.
    New construction: Any new construction or remodeling shall meet the applicable provisions of the 1981 edition of the Life Safety Code.
     Existing facilities: Any existing facility shall be considered to have met the requirements of this subsection if, prior to the promulgation of this chapter, the facility complied with and continues to comply with the applicable provisions of the 1967, 1973, or 1981 edition of the Life Safety Code, with or without waivers.
    Equivalent Compliance: An existing facility that does not meet all requirements of the applicable Life Safety Code may be considered in compliance with it if it achieves a passing score on the Fire Safety Evaluation System (FSES) developed by the U.S. Department of Commerce National Bureau of Standard, to establish safety equivalencies under the Life Safety Code.

    Appendix of 1981 Life Safety Code
    New York No Nothing in state regulations for waivers/variances/ or exception to the rules. Have adopted 2010 Guidelines for construction of nursing homes
    North Carolina No Nothing in state regulations for waivers/variances/ or exception to the rules.
    North Dakota Yes No website, rather information on waivers kept in a excel spread sheet. A waiver may be granted for a specific period of time not to exceed one year and shall expire on December thirty-first of the year issued. Sample waivers include: lack of acoustical ceilings, 4 sq. foot shower not provided, single rooms with dimensions less than 10’, resident toilet rooms not handicapped accessible,  dining rooms less than 20 sq. feet per bed, bathing facilities not provided for every 20 beds, lack of staff toilet at nursing station, heating, ventilating and air condition, barber/beauty shop not provided lack of toilet room convenient to activity room, lavatories do not have gooseneck spouts & blade handles lack of emergency  electrical outlets in corridors.
    Ohio Yes

    Ohio grants variances not waivers. A committee reviews the variance request and makes recommendation to the Director of Health. The information is public record but is not provided on a website. Common requests include variances from the personnel staffing requirements and variances for toilet room requirements.
    No variances allowed for a requirement that is mandated by statute.

    Duration: staffing variances are temporary and expire in one year, while toilet room variances are permanent.
    Oklahoma Yes No formal waiver procedure in place, concerned parties just meet to talk about it. There are two types of waiver requests. One is to not have a nurse’s station and request to have wireless type of fire alarm system. There has not been a single official request for waiver, ever; this type of waiver request just happens in conversation.
    Oregon Yes

    Application requests to include: (e) demonstrate that the proposed waiver is desirable to maintain or improve the quality of care for the residents, will maintain or improve resident potential for self-direction and self-care and will not jeopardize resident health and safety. Duration not to exceed a period of three years. But for physical environment for a period not to exceed ten years.
    (5) EXCEPTIONS.
    (a) Whirlpool Tubs. The number of whirlpool tubs in facilities which have been continuously licensed since January 1, 1992 without modification of number or type of bathtubs/showers shall be considered to be in compliance. Facilities which lack the required number of therapeutic tubs shall have a hospital-type tub on each floor which does not have a therapeutic whirlpool tub. As of January1, 2000, all facilities shall have at least one therapeutic whirlpool tub (waivers may be provided on a case-by-case basis).
    (b) Showers. Facilities which have been continuously licensed since January 1, 1992 shall not be required to meet the dimensions or design criteria defined in subsection (4)(d) of this rule or requirements for dressing and drying areas adjacent showers and tubs.

    (c) Toilets. Facilities continuously licensed since January 1, 1992 shall be exempt from section (d) Handwash Sinks. In facilities with rooms continuously licensed such rooms shall be exempt (e) Spouts, Faucet Handles shall be exempt from such paragraph unless the spouts/faucets are replaced or otherwise provided by OAR 411-087-0010
    Pennsylvania Yes

    51.32 Exception for Innovative Program
    This part is not intended to restrict the efforts of a health care facility to develop innovative and improved programs of management, clinical practice, physical renovation or structural design. Whenever this part appears to preclude any program which may improve the capacity of the health care facility to deliver higher quality care and services or to operate more efficiently without compromising patient or resident care, the Department encourages the health care facility to request appropriate exceptions under this chapter.

    Requests for waivers are sent to one of nine filed offices where reviews are conducted. There is no web based repository of waivers.

    The licensee or prospective licensee shall have the opportunity to present and discuss purposes and plans concerning the requested changes indicated on the architectural plans with the Department. If differences occur and cannot be resolved, administrative hearings may be sought under 1pa. Code Part II (relating to General Rules of Administrative Practice and Procedure.)
    Rhode Island Yes

    State encourages variance requests. Uses term variance. They included section on “Alternative service delivery models” several years ago to open the door for facilities to think outside the box and suggest or request variances for any regulations that are real or perceived barriers to resident-centered care activities and services. Procedure include: administratively review the request and do an on-site review and then provide a written authorization, usually tied to the license and requiring re-submission at the time of license renewal which is annual. No website for variances. Common variances include: room size variance or dining arrangements/services that do not meet the letter of the regulations with the variance outlining alternative plans that are acceptable to the department.

    54.4 Nursing facilities that provide care in accordance with alternative service delivery models may be eligible for a variance in accordance with the requirements contained herein.

    South Carolina Yes

    Procedure includes a form available on the website that facilities use. “Exception review” committee meets once a month. No repository for facility exceptions other than in individual file. Do have provider-wide exceptions that are on website. http:www.scdhec.gov/health/licen/pwe.htm
    Provider-wide waivers represent trends, because they are extended to all providers because enough of them request it.
    Provider-Wide Exceptions & Position Statements
    In the interest of establishing reasonable standards that can be met by providers and yet do not compromise the health and well-being of the patients, residents, and participants cared for in SC licensed facilities, it has been determined that alternative standards will be considered as acceptable. A Provider-Wide Exception (PWE) is the tool that is used to achieve a working relationship between the facility and their regulators. This page also contains Position Statements that give guidance or interpretations of the regulation.

    Exceptions are not transferable to the new licensee unless approved by the Department.
    South Dakota Yes Exception for employment of unqualified nurse aides & Stock of legend drugs prohibited in nursing facilities included in regulations. Exceptions not given by state but by CMS regional office. No website repository for waivers, rather. copies of approvals in individual provider file. The duration is temporary until the next survey period or 2 years. No permanent waivers are currently in place.
    Tennessee Yes Waiver procedures are not included in the state nursing home regulations but they are allowed of the regulations. The waiver requests are made to the Board for Licensing Healthcare Facilities. This group makes the final decision to grant or deny. No information is available on website regarding waiver requests but they can be obtained in writing upon request to the Director of Health Care Facilities. Granted waivers include program issues such as a nursing home operating without a licensed administrator, inactive status, allow DON and administrator to serve two facility and sharing of space with an ACLF. Life safety building issues include: waiver of AIA guidelines regarding dining rooms, separate designated space, reception and information desk location, public waiting areas, and vehicular drop off (for Eden/Green House built facilities) and waiver of the Standard Building Code for open kitchen in Green Houses. Waiver can be permanent or temporary and the overall number of waiver request is not increasing but the type of waiver requests are increasing due to building according to Green house and Eden principles.
    Texas Yes

    A facility will request a waiver after a deficiency has been cited usually during the recertification/re-licensure survey. The facility will petition the regional CMS office to grant a waiver. There is no waiver repository on website. Common waivers include: nursing requirements and square footage of resident rooms. The waivers expire with the next health survey.
    If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, DHS may recommend the facility not be licensed and approved for
    occupancy.
    Approvals, and Construction Procedures
    At the option of the applicant, the Texas Department of Human Services (DHS) will review plans for new buildings, additions, conversion of buildings not licensed by DHS, or remodeling of existing licensed facilities. DHS will, within 30 days, inform the applicant in writing of the results of the review. If the plans comply with DHS's architectural requirements, DHS may not
    subsequently change the architectural requirement applicable to the project unless the change is required by federal law or the applicant fails to complete the project within two years. DHS may grant a waiver of this two-year period for delays due to unusual circumstances

    (B) After consideration of the findings of the Texas Department of Human Services (DHS) for Medicare/Medicaid certified facilities, the Health Care Financing Administration (HCFA) may waive specific provisions of the Life Safety Code which, if rigidly applied, would result in unreasonable hardship on the facility, but only if the waiver does not adversely affect the health and safety of residents or personnel.
    Utah Yes

    Utah uses term variance. Request goes to Manger, Bureau of Health Facility Licensing, Certification and Resident Assessment who reviews and consults with appropriate person before making decision. Variances are not on a website nor are they tracked internally for trends. Duration is short-term for a CNA who needs to retake a test and permanent would be two residents deciding that they want to room together, and then the waiver would be tied to that specific room and the situation of those two residents.
    A Level I facility with a bed capacity of 16 beds or less, may request a variance from some construction standards for nursing care facilities, if the health, safety, and welfare of residents can be preserved. (Would this benefit a small house model?)
    If an existing building bathroom or toilet room is not exhausted to the outside, the licensee may submit a Request for Agency Action Variance to the Table 2 requirements at the time of initial licensing.
    (3) Large and small facilities shall provide a thermostat control in each resident living unit. The Department shall grant a variance upon request from the licensee to this requirement for an existing building seeking initial licensure.

    Plumbing shutoff valves shall be located on the main water supply line and at each fixture. In addition, large facilities shall provide an accessible shutoff valve on each primary hot and cold branch of the water line and shall provide a minimum of two hot and two cold water zones. The Department shall grant a variance upon request from the licensee to this requirement for an existing building seeking initial licensure.
    Vermont Yes

    Variance requests are made in writing to the division of Survey and Certification. They are review and approved in the office. Physical plant waivers are reviewed with Fire Safety. There is no website repository for waiver information. Common waivers include residential care.
    The Vermont Department of Labor and Industry may waive specific provisions of the Vermont Fire Prevention and

    Building Code which, if rigidly applied, would result in unreasonable hardship.
    Virginia Yes

    Waiver requests are submitted to the Director of Long Term Care. They have not had any requests for the last several years. There is no website repository for waivers, as they are kept in facility files for 2 years and then they are shredded. The center can authorize variances only to its own licensing standards, not to regulations of another agency or to any requirements in federal, state, or local laws.

    Washington Yes Waivers are allowed but a procedure is not included in the regulations themselves. Request not available on website just in facility file. Most requests are for wireless call systems. They receive very few requests each year. Resident room size variance allowed if it is in accordance with the special needs of the resident; and will not adversely affect any resident’s health or safety.
    West Virginia Yes

    Waivers for the physical plant requirements are processed by the Life-Safety code program. West Virginia routinely does not issue waivers to resident care requirements, only to the physical plant requirements. The results of waiver requests are kept in the individual nursing home file. There is no repository of this information on a website. Most initial waivers of physical plant requirements are approved but renewals are not always granted. Duration: all waivers of the rule are time-limited, although the waivers may be renewed at the discretion of the life-safety code program manager. Common waiver requests include: insufficient toilet facilities and insufficient activity/dining space. A variance shall not be granted from a provision pertaining to residents' rights.

    Wisconsin Yes

    Waiver requests are submitted to Licensure and Certification only for resident care. Any waivers for physical plant are handled through K-tags. Previously received a lot of waiver requests but since rules changed in 2007 there is a reduced need for waivers. Most common waiver previous to 2007 was for removing the bed because residents want to sleep in their recliners. Rules were changed to state resident’s preference for sleeping so no waiver needed. No website repository for waivers just kept in facility file. Waiver means granting of an exemption from a requirements and variance means granting an alternate requirement in place of a requirement. Waiver granted for: An alternative to a rule, including new concepts, methods, procedures, techniques, equipment, personnel qualifications, or the conducting of pilot projects, is in the interests of better care or management.

    Wyoming No Variance procedures are not located in state nursing home regulations rather in construction regulations. State does not get many waivers and they do not have an option for a waiver for resident care. In the last four years, only 2-3 waiver requests were made and one was for a swamp cooler (operated with water and puts moisture in the air) instead of an air conditioner. For the other two requests, after review it was decided that no request was needed, they facility could accomplish without request a waiver. Waivers are kept in individual facility file. There was no option for a variance until 2007 when we adopted emergency rules for 3 months but nobody asked for a variance. Prior to 2007 there was no option for asking for a variance.

    Complete Transcript of State Requirements on Physical Environment - Waivers    (TOP)