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Waivers - Services, Waivers and Variances

 

Comparison of State Requirements
Table Comparing States
Complete Transcript of State Requirements on Services, Waivers and Variances (PDF)

Comparison of State Requirements    (TOP)    (NEXT)

States vary widely in addressing waivers and variances in their regulations. Some states, including Alabama, Florida, Kansas, Nevada, and New York do not include provisions for waivers or variances at all in their state regulations. Others go into great detail about application procedures and specific issues for which waivers and variances may be used. The most commonly addressed topics include the physical environment, licensure, and staffing requirements. These, and other more obscure themes, are discussed below.

Waiver and Variance Procedures    (TOP)    (NEXT)

Many states include specific details on how to apply for a waiver or variance, including information on fees, hearings, and appeals. Several states, including Delaware and Idaho, stipulate that any application must demonstrate a "good cause" in order to be considered. In Michigan, the "application fee for a waiver under section 21564 is $200.00 plus $40.00 per hour for the professional services and travel expenses directly related to processing the application."

Staffing Requirements    (TOP)    (NEXT)

States have varying approaches to allowing waivers or variances for staff. When included, these provisions often relate to specific staff, including the director of nursing, nurses, nurses' aides, social services staff, food service staff, or the administrator. Most frequently, the staffing waivers focus on requirements for nursing staff and staff ratios.

Minimum Staffing Rations

Arkansas allows exceptions for the minimum staffing ratios for a discrete period of time: "Upon an increase in a facility's resident census, the facility shall be exempt from any corresponding increase in staffing ratios for a period of nine (9) consecutive shifts beginning with the first shift following the midnight census for the date of the expansion of the resident census. "California allows facilities to apply for a waiver from the minimum staffing ratios, "as long as the facility continues to meet the 3.2 nursing hours per patient day requirement."

Director of Nursing

Some states allow exceptions for filling the director of nursing position on a permanent or limited basis. For example, Missouri allows states to request a waiver from the requirement that the director of nursing be a registered nurse. Kentucky and Texas allow facilities to apply for waivers from the director of nursing requirements if the facility is located in a rural area. However, Texas goes on to stipulate that, "If a nursing facility, as a result of waivered status, employs a licensed vocational nurse to supervise and direct nursing services, the facility must have an agreement with a registered nurse who must provide the vocational nurse at least four hours of consultation in the facility per week."

Administrator

Waivers from the requirements of the administrator role are allowed in some states. In Tennessee, if a facility suffers an unexpected loss of its administrator, it must "request a waiver of the appropriate regulations from the board" within seven days of the loss. Georgia requires that administrators oversee only one facility, "except that two facilities having common ownership or management located on the same premises may be served by a single administrator." However, in "exceptional circumstances" facilities may apply for a six-month waiver from this requirement. Meanwhile, Louisiana stipulates that NO waiver provisions will be allowed for the administrator position.

Other Staff Positions

Occasionally, states include provisions for waivers and variances to fill other staff positions. For example, in Rhode Island, "any nursing facility licensed under Chapter 17 of Title 23 that employs a social worker or social worker designee who meets all of the criteria in section 31.4 below shall be granted a variance to the "qualified social worker" provisions stated herein." In Colorado, facilities in rural areas may apply for a waiver from the qualification requirements for social services staff "if it demonstrates that it has made a good faith effort to hire staff with the required qualifications, but that qualified social services staff are unavailable in the area."

The only state to mention waivers for food service staff, Delaware states that, "a facility may seek a waiver of the statutory requirements if an insufficient pool of applicants exists. The facility must demonstrate the inability to hire a person who meets the requirements after a recruitment process of at least 90 days duration that included advertising in at least two newspapers of general circulation and one trade journal, offering a competitive salary. If those conditions are met, the Division may waive the education requirement for an applicant who meets the requirements of a "person in charge" as defined in the current Delaware Food Code."

Training Requirements    (TOP)    (NEXT)

Many states include provisions for waivers from specific training and education requirements. For example, Iowa allows an exemption from the "mandatory training for identifying and reporting child and dependent adult abuse" for anyone who is engaged in active military service or who "holds a current waiver by the board based on evidence of significant hardship in complying with training requirements." Massachusetts allows nurses' aides to substitute an equivalency evaluation for a training course if sufficient experience and expertise are demonstrated. Montana allows a waiver from the prohibition of providing nurses' aide training IN the facility if "there are no other nurse aide training and competency evaluation programs in, or within a reasonable distance from, the community in which the nursing facility is located."

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 Waivers by State (with a link to each State's specific language).  Link to a downloadable PDF document containing all State requirements on Services, Waivers and Variances.

Waivers

State Goes beyond Federal Regulations? Subjects Addressed
Alabama No No state-specific regulations
Alaska Yes Licensure; Accreditation; Emergency Services
Arizona No No state-specific regulations
Arkansas Yes Charge Nurse; Minimum-Staffing Exceptions; Nursing Assistant Training Program
California Yes Staffing Ratios; Staff Licensing Examinations
Colorado Yes Exceptions to Regulations; Social Service Staffing; Physical Environment Requirements
Connecticut Yes Exceptions to Regulations; General Waiver Application Procedure
Delaware Yes Food Service Manager Requirements; Good Cause Waivers
District of Columbia Yes Staffing Requirements
Florida No No state-specific regulations
Georgia Yes Administration; Patient Capacity
Hawaii Yes Waiver Duration; Licensing
Idaho Yes Good Cause Waivers; Waiver of Registered Nurse as Supervising or Charge Nurse
Illinois Yes Supported Congregate Living Arrangement Demonstration; Waiver Duration and Renewal; Resident Criminal Background Check Fingerprint Waiver; Bedroom Size Exceptions for Intermediate Care Facilities
Indiana Yes Licensure; Staffing Requirements; Residents' Rights
Iowa Yes License Renewal; Staff Training; Reporting Requirements
Kansas No No state-specific regulations
Kentucky Yes Existing Facilities with Waivers; Variances; Variance Hearings; Licensed Nurse Waiver; Waiver or Extensions of Continuing Education
Louisiana Yes Exemptions to Licensing Requirements; No Waivers for Administration; Parking Area
Maine Yes Waiver Provisions and Application; Elevators and Dumbwaiters; New Construction Not Eligible for Alzheimer's/Dementia Care Waivers
Maryland Yes License Requirement and Procedures; Physical Plant General Requirements
Massachusetts Yes Admission of Residents with Mental Health Problems to Non-CSF Facilities; Education Requirements; Charge Nurse; Administration of Controlled Substances; Telephones; Licensing Requirements; Special Projects; Substitution of Equivalency Evaluation for Training Courses; Instructor Qualifications
Michigan Yes Terms Defined; Role of the Department; Construction Permits; Waiver Application; Waiver Application Fees
Minnesota Yes Variance and Waiver Application Process and Renewal; Compliance
Mississippi Yes Waiver of Employee Criminal History; Licensing Agency Waivers in Mental Institutions
Missouri Yes Nurse Staffing Requirements; Licensure Requirements; Good Cause Waiver on Hiring Restrictions; Nursing Assistant Training; Waivers for Specific Employees in Residential Care and Assistant Living Facilities
Montana Yes Hourly Limitations; Skill and Competency Waiver for Employees with Limited Handicaps; Program Waivers; Waiver of Provision of Nurse Aide Training and Competency Evaluation in Nursing Facilities
Nebraska Yes Registered Nurse Requirements; 24-Hour Nurse Staffing Requirements; Notifications of Waivers; Physical Plant Standards; Unreasonable Hardship; Waiver Terms; Denial of Waiver
Nevada No No state-specific regulations
New Hampshire Yes Construction and Renovation Waivers; Waiver Applications; Personnel
New Jersey Yes Waiver Application Process; Waiver of Nine Station Minimum Requirement for Chronic Hemodialysis Services; Good Cause Waivers; Administrative Experience; Continuing Education Credits
New Mexico Yes Waiver and Variance Application and Revocation; License Limitation; Existing Waivers for Physical Environment
New York No No state-specific regulations
North Carolina Yes Nurse Staffing Requirements
North Dakota Yes Waivers to be Granted for No Longer Than a Year
Ohio Yes Medicaid Waiver Services
Oklahoma Yes Filing of Waivers; Direct Care Staffing Requirement
Oregon Yes Waiver Application, Implementation, and Revocation; Minimum General Staffing; Minimum Nurse Staffing; Physical Environment Waivers
Pennsylvania Yes Clock Hours Requirement
Rhode Island Yes Variance from 30-Day Notice of Closure; Qualified Social Worker Variance; New Construction Variance; Variance Request Process
South Carolina Yes Laboratory Services Certification
South Dakota Yes Waiver of Influenza Vaccine for Individual Residents
Tennessee Yes Administration Requirements
Texas Yes Accreditation Review; Facility Construction; Nursing Staff Requirements; Director of Nursing; Physical Environment; Exceeding Licensed Capacity; Suspension of Admissions; Medicaid Bed Allocation; Rural County Waiver
Utah Yes Medication Administration
Vermont Yes Waiver of Specific Provisions of the Vermont Fire Prevention and Building Code
Virginia Yes Functional Design Features Variances; Variance Application Process
Washington Yes Resident Waivers for Liability of Personal Property Not Allowed; Resident Room Size
West Virginia Yes General Provisions Variances
Wisconsin Yes Waiver and Variance Definitions, Application, Requirements, and Procedures
Wyoming No No state-specific regulations

Complete Transcript of State Requirements on Services, Waivers and Variances    (TOP)