Recently, CMS released
QSO-23-11-LSC regarding a Categorical Waiver – Health Care Microgrid Systems (HCMSs) for all skilled nursing facilities (SNFs), with the exception of SNFs providing life support. This memo is effective immediately.
Various CMS regulations governing certain providers require compliance with the 2012 edition of the National Fire Protection Association (NFPA) Health Care Facilities Code (NFPA 99). The 2012 edition of NFPA 99 requires emergency power for an essential electric system (EES) to be supplied by a generator or battery system; however, the 2021 edition of NFPA 99 permits emergency power for an EES to be supplied by sources other than a generator or battery system, including a health care microgrid system (HCMS).
Health care microgrid systems (HCMSs) are small-scale electrical grids where the sources of electricity can be provided by clean energy technologies (e.g., fuel cells, solar, wind, energy storage, etc.). According to NFPA 99 (2021), 3.3.76, Health Care Microgrid Control System is defined as a system including health care microgrid control functions that can manage itself, operate autonomously, and connect to and disconnect from the utility for the exchange of power and the supply of ancillary services.
An HCMS can be more reliable, efficient, and reduces environmental and health issues associated with generator emissions through the use of clean energy technologies.
In addition to sustainability, an HCMS can provide additional redundancy and resiliency beyond the traditional use of generators.
CMS is issuing a categorical waiver permitting new and existing health care facilities subject to CMS requirements to utilize alternate sources of power other than a generator set or battery system only if in accordance with the 2021 edition of NFPA 99, 2023 edition of the National Electric Code (NFPA 70), and associated references. CMS regulations allow for the waiver of specific provisions of the 2012 edition of NFPA 99 where the application would result in unreasonable hardship upon a provider or supplier, but only if the waiver does not adversely affect the health and safety of patients or residents. CMS has determined that limiting the ability to utilize an HCMS as a power source in place of a traditional generator or battery systems is an unreasonable hardship. As such, CMS is providing the opportunity to utilize HCMS through a categorical waiver.
Exclusions
The categorical waiver excludes long term care (LTC) facilities that provide life support as the LTC requirements at 42 CFR 483.90(c)(2) requires these facilities to have an emergency generator without exception.
Categorical Waiver Process
Providers that choose to utilize this categorical waiver must formally elect and document their decision.
At the survey entrance conference, a provider or supplier that has elected to use the categorical waiver must provide the survey team with their documented decision and verification of compliance with all applicable requirements in the 2021 edition of NFPA 99. If a provider or supplier has not elected to use this categorical waiver, the facility emergency power supply system will be surveyed for compliance to the 2012 edition of NFPA 99, the 2023 edition of NFPA 70, and associated references. It is not acceptable for a facility to notify surveyors of the election to use a categorical waiver after the survey team has issued a citation. The survey team will review the documented decision to use the categorical waiver and confirm the facility is compliant with the applicable requirements.
If a provider or supplier has not elected to use this categorical waiver, the facility emergency power supply system will be surveyed for compliance with the 2012 edition of the NFPA 99.
If a provider or supplier has elected to use the categorical waiver for an HCMS and is in compliance with the 2021 edition of NFPA 99, 2023 edition of the NFPA70, and associated references, the facility will not be cited for non-compliance with the 2012 edition of NFPA 99 and will not be required to request a separate waiver as part of the survey plan of correction. The survey team will describe the facility-specific categorical waiver use under K900 – Health Care Facilities Code-Other and mark the facility as “The Facility Meets the Standard, Based Upon, 3. Recommended Waivers.”
If a provider or supplier has elected to use the categorical waiver for an HCMS and is not in compliance with the 2021 edition of NFPA 99, 2023 edition of the NFPA 70, and associated references, the facility will be cited for non-compliance with the 2012 edition of NFPA 99. The survey team will describe the facility-specific categorical waiver use under K900 – Health Care Facilities Code-Other and cite the facility referencing applicable sections of the 2012 NFPA 99. In order for the facility to continue to use the categorical waiver for an HCMS, it will need to provide an acceptable plan of correction to reestablish compliance with the 2021 edition of NFPA 99, 2023 edition of NFPA 70, and associated references.