Federal Rulemaking Proposes a New Retroactive
Sprinkler Requirement
The Centers for Medicare and Medicaid Services of the Department
of Health and Human Services (HHS-CMS) have published a
proposed rule addressing automatic sprinkler systems in
long-term health care facilities. The proposed rule would
create a new federally imposed requirement for nursing homes
to be fully sprinklered in order to receive compensation for
treating Medicare and Medicaid beneficiaries. HHS estimates
that of 18,005 facilities across the country, 14,317 (76%)
are fully sprinklered, 2,687 (15%) are partially sprinklered
and 782 (4%) are not presently sprinklered, and the condition
of 5% is unknown. HHS notes that there is "variability"
in local fire safety requirements and specifically requests
the public to comment on the “necessity, advantages and
disadvantages of deferring to State and local jurisdictions.”
The 1964 law creating the Medicare program instructed HHS
to apply the Life Safety Code (LSC) for minimums in fire-safety
and egress. At the time of its enactment this measure ensured
a minimum level of safety in areas where no code was in force.
In the last decade, commercial construction in the U.S. has
grown to be guided by a single nationally recognized comprehensive
model building code. The same 1964 law also authorizes HHS
to accept a state request to avoid regulatory overlap and
inefficiency through recognition of its own fire and safety
code as serving the purposes of the federal law. The International
Code Council (ICC) encourages CMS to thoroughly review and
act upon several applications for this recognition. At present,
ICC has made a request for recognition by HHS of the building
safety and fire prevention features of the International Codes
(I-Codes). In addition, the State of Michigan is awaiting
a reply to its application initiated in 2003, and the State
of Alaska has recently submitted a new request for HHS approval.
The ICC model codes, adopted by most U.S. state and local
jurisdictions for comprehensive regulation of buildings and
facilities, are written to provide a reasonable minimum level
of safety in all types of construction and use. ICC encourages
jurisdictions to govern themselves beyond these minimum requirements
and the model codes are designed to be easily amended. Jurisdictions
that decide on a statewide or local basis to afford and require
enhanced levels of safety regularly add provisions to go beyond
the minimum requirements, including those addressing health
care facilities such as nursing homes. At the same time, ICC
recognizes that code requirements are only a part of the overall
system of life safety in a community, and resources, needs
and components of life safety systems can and do vary from
one jurisdiction to another. These resources include fire
response capabilities (staffing, response times, training,
etc.), water supply, and other emergency and non-emergency
programs. Adoption of the I-Codes at the local and state level
allow jurisdictions to consider all of the components of a
community’s system to ensure citizens’ safety by
permitting the regulations to be modified to address local
conditions. For a federal agency to assume that all jurisdictions
have the same overall capability and, therefore, need the
same level of retroactive protection, seems unresponsive to
those communities that have chosen to provide services in
a different manner than a federal agency envisions.
In the proposed rule, HHS clearly recognizes that modern
building and fire safety requirements have dramatically reduced
incidences of fire fatalities at long-term care facilities.
In its consideration of this rulemaking HHS is encouraged
to recognize that these achievements are historically founded
on the building safety and fire protection features of comprehensive
state and local building and fire codes. In 2003, the HHS
rules were amended to require automatic sprinklers systems
in newly constructed or substantially renovated facilities.
It is notable that by that time, 90% of today’s fully
sprinklered long-term health care facilities had been constructed
with these features under the already stringent requirements
of state and local building safety and fire prevention codes.
The deadline for submission of comments on the HHS proposed
rule is December 26, 2006. ICC’s comments, supporting
the efficacy of automatic fire sprinklers in long-term care
occupancies, will also observe that the HHS rulemaking should
seek to advance this policy interest through expansive collaboration
with state and local authorities in their administration of
comprehensive building safety and fire prevention codes. ICC
encourages broad commentary to the HHS on the implications
of this rulemaking on state and local jurisdictions.
