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Frequently Asked Questions Concerning Waivers and Variances

  1. I hear the terms "waivers" and "variances" used when discussing a health care provider’s compliance with rules and regulations. What do they mean?

Although we often see the terms used interchangeably, they actually have two separate and distinct definitions. To waive means to set aside or dispense with, so when a waiver of a requirement is allowed it means that the requirement is not being applied at all. A variance indicates that an act of varying is taking place, or in other words, there is a difference between what is expected (the requirement) and what is taking place (how the holder of the variance is meeting the requirement).

  1. So, if I have a waiver or variance to a requirement, I am excused from meeting that requirement?

This is true for a waiver of the requirement. If, on the other hand, a variance has been granted, this means that the requirement is being met, but in an alternative manner.

  1. For Ohio Department of Health rules and regulations, who grants waivers and variances?

The authority to grant or deny waivers and variances of state rules or requirements rests with the Director of Health and his decision is based upon the information supplied by the entity requesting the waiver or variance and the recommendation of the program having the regulatory oversight of the health care activity involved.  The director does not have the authority to waive any federal requirements; e.g., Medicare program participation requirements or standards.

  1. If it is a statutory requirement and not just a matter of rule, can I still get a waiver or variance?

No, statutory requirements cannot be waived and the Director may not allow a variance to the law as stated in statute.

  1. How does a Health Care Facility or Health Care Service overseen by the Bureau of Community Health Care Facilities and Services obtain a waiver or variance from a requirement?

A request must be in writing and clearly state the reason for the requested waiver or variance. A waiver may be granted based on extreme and undue hardship placed on the provider in complying with the requirement. It must also be shown, however, that, by granting the waiver, the health and safety of no patient of the facility or service will be jeopardized. A variance may be granted where the provider demonstrates that the intent of the requirement is being met in an alternative manner to that described in the requirement set forth in rule.

  1. Are the Director of Health’s waivers and variance precedence setting?

No, the granting of a waiver or variance by the Director shall not be construed as precedence for any other waiver or variance. Every request is judged on its own merits.

  1. Once granted, does a waiver or variance remain in effect indefinitely?

No.  Should the situation or circumstances under which the waiver or variance was granted change or should it come to the attention of the director that the health or safety of any patients is jeopardized by the continuance of the waiver or variance, the director may rescind the waiver or variance.

  1. Can any rule pertaining to Health Care Facilities and Health Care Services be waived or a variance granted?

No, in the case of Health Care Facilities, only building and safety requirements found in Chapter 3701-83 of the OAC are subject to waiver or variance consideration. Rules such as patient care, personnel, staffing, and service standards may not be waived or a variance allowed. In the case of Health Care Services, any rule found in Chapter 3701.84 of the OAC may be addressed.

  1. Are Life Safety Code requirements for hospitals, ambulatory surgical centers, end-stage renal disease facilities, and inpatient hospices handled in the same manner as discussed above?

No, the Life Safety Code requirements may only be waived or exceptions granted by the federal regulatory agency, the Center for Medicare and Medicaid Services (CMS). ODH surveyors do process waiver requests of regulated entities at the time of the onsite survey; however, the request is acted upon by staff at CMS’ Chicago Regional Office.

Last Updated: 06/10/09