CMS Announces FSES-Related Waiver Extension

CMS; Skilled Nursing Facilities (SNF)

​This week, CMS announced it is granting a two-year extension to a specific group of existing Time Limited Waivers (TLW). This benefits providers who have historically utilized a Fire Safety Evaluation System (FSES) to show equivalent compliance with the Life Safety Code®, and to meet fire safety requirements for certification with Medicare and Medicaid programs. ​Previously, CMS had granted a five-year TLW to organizations directly affected by an FSES scoring change. However, many of those waivers are due to expire by the end of this year. By granting the extension, providers will now have until November 1, 2023 to come into compliance with the Life Safety Code®. AHCA has repeatedly raised this issue with CMS, and are glad to see a resolution, if temporary, to this pressing concern.​

This extension directly affects providers who previously had passed a FSES using the 2001 edition of NFPA 101A, but could no longer pass the FSES using the 2013 edition of NFPA 101A. This situation commonly affected facilities with construction deficiencies often cited under K161. Unforeseen changes to NFPA 101A between the two editions created an overnight compliance problem when the 2012 edition of the Life Safety Code® was adopted by CMS in 2016. The issue was a change in scoring values, not in the level of fire and life safety provided. Providers were not suddenly any less safe. 

The two-year waiver extension also provides CMS additional time to implement a long-term solution. CMS can address the issue through a variety of mechanisms including:

  • ​Finalizing the provision in the rule that was proposed in 2019. That would allow providers to default back to the “mandatory values” of the 2001 FSES.
  • Providing a categorical waiver permitting use of the updated construction section in Chapter 19 of the 2021 edition of the Life Safety Code®.
  • Adopting the 2021 edition of the Life Safety Code® in its entirety.

For now, this provides important relief to organizations with waivers on the brink of expiration. However, a new FSES will be required to be completed and submitted after each annual survey is conducted. You can access the fully updated CMS memo. AHCA will continue to advocate for a permanent solution that is favorable to providers.